Picking Cotton for Pennies: An Exploration into the Law’s Modern Endorsement of a Free-Prison Workforce

The Thirteenth Amendment made slavery unconstitutional, but also created an exception where “[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” This carve-out opened the door for prison-dependent companies to make handsome profits from large scale prison labor. Inmates must work full time in demanding conditions, and are paid nominally in return. Inmates do not receive minimum wages because they are excluded from the protections of the Fair Labor Standards Act (“FLSA”) through judicial interpretation. Low wages harm inmates because there are costs to imprisonment; inmates are charged for personal hygiene products, health services, per diem fees, prescriptions, police booking, probation, DNA testing, police transportation, phone calls, public defender services, and visitations.

Inmates and their families cannot afford the exorbitant costs of imprisonment. This article argues that courts’ holdings that inmates have no right to freely sell their labor, should change because one’s labor should always belong to his or herself. The FLSA was meant to protect against low-wage harms, and courts should reframe their analysis to better address the economic reality of prison labor.