Penal labour

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v t e

Penal labour is a form of unfree labour in which prisoners perform work, typically manual labour. The work may be light or hard, depending on the context. Forms of sentence which involve penal labour include penal servitude and imprisonment with hard labour. The term may refer to several related situations: labour as a form of punishment, the prison system used as a means to secure labour, and labour as a form of occupation of convicts. These situations can be applied to those imprisoned for political, religious, war, or other reasons as well as to criminal convicts. Large-scale implementations of penal labour include labour camps, prison farms, and penal colonies.

Punitive prison labour

Punitive labour, also known as convict, prison, or hard labour, is a form of unfree labour used in both past and present as an additional form of punishment beyond imprisonment alone. Punitive labour occupies a spectrum between two types: productive labour, such as industrial work; and intrinsically pointless tasks used as primitive occupational therapy and/or physical torment. Sometimes authorities turn prison labour into an industry, as on a prison farm. In such cases, the pursuit of income from their productive labour may even overtake the preoccupation with punishment and/or reeducation as such of the prisoners, who are then at risk of being exploited as slave-like cheap labour (profit may be minor after expenses, e.g. on security). On the other hand, in Victorian prisons, inmates commonly were made to work the treadmill: in some cases, this was productive labour to grind grain; in others, it served no purpose. Similar punishments included the crank machine (a device where prisoner had to turn a crank that merely pushed paddles through sand in a drum), and shot drill, carrying cannonballs around for no purpose.^[1] Semi-punitive labour also included oakum-picking: teasing apart old tarry rope to make caulking material for sailing vessels.

British Empire

In the British Empire in the 19th century, hard labour became a standard feature of penal servitude as penal transportation was phased out. Although it was prescribed for severe crimes (e.g. rape, attempted murder, wounding with intent, per the Offences against the Person Act 1861) it was also widely applied in cases of minor crime such as petty theft and vagrancy, as well as victimless behaviour deemed harmful to the fabric of society. Notable recipients of forced labour under British law include Oscar Wilde (after his conviction for gross indecency) and John William Gott (a terminally ill trouser salesman convicted of blasphemy).

Labour was sometimes useful. In Inveraray Jail from 1839 prisoners worked up to ten hours a day. Most male prisoners made herring nets or picked oakum (Inveraray was a busy herring port); those with skills were often employed where the skills could be used, such as shoemaking, tailoring or joinery. Female prisoners picked oakum, knitted stockings or sewed.^[1]

Forms of labour for punishment included the treadmill, shot drill, and the crank machine.^[1]

Treadmills for punishment were used in prisons in Britain from 1818; they were like 20-foot paddle wheels with 24 steps around a six-foot cylinder. Prisoners had to work six or more hours a day, climbing 5,000 to 14,000 vertical feet. While the purpose was mainly punitive, the mill could grind grain, pump water, or ventilate.^[2]

Shot drill involved stooping without bending the knees, lifting a heavy cannonball slowly to chest height, taking three steps to the right, replacing it on the ground, stepping back three paces, and repeating, moving cannonballs from one pile to another.^[1]

The crank machine was a machine with a handle that forced four large cups or ladles through sand inside a drum, doing nothing useful. Male prisoners had to turn the handle 14,400 times a day, as registered on a dial. The warder could make the task harder by tightening a screw, hence the slang term "screw" for prison warder.^[1]

The British penal colonies in Australia between 1788 and 1868 provide a major historical example of convict labour, as described above: during that period, Australia received thousands of transported convict labourers, many of whom had received harsh sentences for minor misdemeanours in Britain or Ireland.

The Penal Servitude Act 1853 (16 & 17 Vict. c.99) substituted penal servitude for transportation, except in cases where a person could be sentenced to transportation for life or for a term not less than 14 years. Section 2 of the Penal Servitude Act 1857 (20 & 21 Vict. c.3)^[3] abolished the sentence of transportation in all cases and provided that in all cases a person who would otherwise have been liable to transportation would be liable to penal servitude instead. Sentences of penal servitude were served in convict prisons and were controlled by the Home Office and the Prison Commissioners. After sentencing, convicts would be classified according to the seriousness of the offence of which they were convicted and their criminal record. First time offenders would be classified in the Star class; persons not suitable for the Star class, but without serious convictions would be classified in the intermediate class; and habitual offenders would be classified in the Recidivist class. Care was taken to ensure that convicts in one class did not mix with convicts in another.

As late as 1885, 75% of all prison inmates were involved in some sort of productive endeavour, mostly in private contract and leasing systems. By 1935 the portion of prisoners working had fallen to 44%, and almost 90% of those worked in state-run programmes rather than for private contractors.^[4]

Section 1 of the Penal Servitude Act 1891^[5] makes provision for enactments which authorise a sentence of penal servitude but do not specify a maximum duration. It must now be read subject to section 1(1) of the Criminal Justice Act 1948.

England and Wales

Penal servitude was abolished for England and Wales by section 1(1) of the Criminal Justice Act 1948.^[6] Every enactment conferring power on a court to pass a sentence of penal servitude in any case must be construed as conferring power to pass a sentence of imprisonment for a term not exceeding the maximum term of penal servitude for which a sentence could have been passed in that case immediately before the commencement of that Act.

Imprisonment with hard labour was abolished by section 1(2) of that Act.

Northern Ireland

Penal servitude was abolished for Northern Ireland by section 1(1) of the Criminal Justice Act (Northern Ireland) 1953.^[7] Every enactment which operated to empower a court to pass a sentence of penal servitude in any case now operates so as to empower that court to pass a sentence of imprisonment for a term not exceeding the maximum term of penal servitude for which a sentence could have been passed in that case immediately before the commencement of that Act.

Imprisonment with hard labour was abolished by section 1(2) of that Act.

Scotland

Penal Servitude was abolished for Scotland by section 16(1) of the Criminal Justice (Scotland) Act 1949 on 12 June 1950.

Imprisonment with hard labour was abolished by section 16(2) of that Act.

Every enactment conferring power on a court to pass a sentence of penal servitude in any case must be construed as conferring power to pass a sentence of imprisonment for a term not exceeding the maximum term of penal servitude for which a sentence could have been passed in that case immediately before 12 June 1950. But this does not empower any court, other than the High Court, to pass a sentence of imprisonment for a term exceeding three years.

See section 221 of the Criminal Procedure (Scotland) Act 1975 and section 307(4) of the Criminal Procedure (Scotland) Act 1995

France

Prison inmates can work either for the administration pénitentiaire (directly, by performing tasks linked to prison operation, or for the Régie Industrielle des Établissements Pénitentiaires, which produces and sells merchandise; this is the equivalent of the state-use system in the US) or for a private company, in the framework of a prison/company agreement for leasing inmate labor. Work ceased being compulsory for sentenced inmates in France in 1987. From the French Revolution of 1789, the prison system is governed by a new penal code.^[8] Some prisons become almost factories, in the nineteenth century, many discussions focus on the issue of competition between free labor and prison labor. Prison work is temporarily prohibited during the revolution of 1848. Prison labor will then specialize in the production of goods sold to government departments (and directly to prisons, for example guards' uniforms are produced by inmates) or in small low-skilled without machines (mainly subcontracting to small local industries).

China

In pre-Maoist China, a system of labor camps for political prisoners operated by the Kuomintang forces of Chiang Kai-shek existed during the Chinese Civil War from 1938–1949. Young activists and students accused of supporting Mao Zedong and his Communists were arrested and re-educated in the spirit of anti-communism at the Northwestern Youth Labor Camp.^[9]

After the Communists took power in 1949 and established the People's Republic of China, laojiao (Re-education through labor) and laogai (Reform through labor) was (and still is in some cases) used as a way to punish political prisoners. They were intended not only for criminals, but also for those deemed to be counter-revolutionary (political and/or religious prisoners).^[10] According to Al Jazeera special report on slavery, China has the largest penal labour system in the world today. Often these prisoners are used to produce products for export to the West.^[11]

Japan

Most Japanese prisoners are required to engage in prison labour, often in manufacturing parts which are then sold cheaply to private Japanese companies. This practice has raised charges of unfair competition since the prisoners' wages are far below market rate.

The Netherlands

(Hard) penal labour does not exist in the Netherlands, but a light variant (Dutch: taakstraf) is one of the four primary punishments that a committer of a crime can be sentenced to.^[12] The person who is sentenced to a taakstraf must perform some service to the community. The maximum punishment is 240 hours, according to article 22c, part 2 of Wetboek van Strafrecht.^[13] The labour must be done in his free time. Reclassering Nederland keeps track of those who were sentenced to taakstraffen.^[14][15]

United States

Federal Prison Industries (UNICOR or FPI) is a wholly owned United States government corporation created in 1934 that uses penal labour from the Federal Bureau of Prisons (BOP) to produce goods and services. FPI is restricted to selling its products and services to federal government agencies and has no access to the commercial market.^[16]

The 13th Amendment of the American Constitution in 1865 explicitly allows penal labour as it states that "neither slavery nor involuntary servitude, except as a punishment for a crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."^[17][18] Unconvicted detainees awaiting trial cannot be forced to participate in forced rehabilitative labour programs in prison as it violates the Thirteenth Amendment.

The "convict lease" system became popular throughout the South following the American Civil War and into the 20th century. Since the impoverished state governments could not afford penitentiaries, they leased out prisoners to work at private firms. Reformers abolished convict leasing in the 20th-century Progressive Era. At the same time, labour has been required at many prisons.

In 1934, federal prison officials concerned about growing unrest in prisons, lobbied to create a work program. Private companies got involved again in 1979, when Congress passed a law allowing them to hire prisoners in some circumstances.

Penal labour is sometimes used as a punishment in the U.S. military.^[19]

Penal labour is not required in the United States, but refusal to work normally results in the inmate receiving less food, a longer sentence, or other sanctions.^{[citation needed]}

Republic of Ireland

Penal servitude was abolished for the Republic of Ireland by section 11(1) of the Criminal Law Act, 1997.^[20]

Every enactment conferring a power on a court to pass a sentence of penal servitude in any case must be treated as an enactment empowering that court to pass a sentence of imprisonment for a term not exceeding the maximum term of penal servitude for which a sentence could have been passed in that case immediately before the commencement of the Criminal Law Act 1997.

In the case of any enactment in force on the 5 August 1891 (the date on which section 1 of the Penal Servitude Act 1891 came into force) whereby a court had, immediately before the commencement of the Criminal Law Act 1997, power to pass a sentence of penal servitude, the maximum term of imprisonment may not exceed five years or any greater term authorised by the enactment.

Imprisonment with hard labour was abolished by section 11(3) of that Act.

Soviet Union

Another historically significant example of forced labour was that of political prisoners and other persecuted people in labour camps, especially in totalitarian regimes since the 20th century where millions of convicts were exploited and often killed by hard labour and bad living conditions. For much of the history of the Soviet Union and other Communist states, political opponents of these governments were often sentenced to forced labour camps. The Soviet Gulag camps were a continuation of the punitive labour system of Imperial Russia known as katorga, but on a larger scale.

Between 1930 and 1960, the Soviet regime created many Lager labour camps in Siberia and Central Asia.^[21][22] There were at least 476 separate camp complexes, each one comprising hundreds, even thousands of individual camps.^[23] It is estimated that there may have been 5-7 million people in these camps at any one time. In later years the camps also held victims of Stalin’s purges as well as World War II prisoners. It is possible that approximately 10% of prisoners died each year.^[24] Out of the 91,000 Germans captured alive after the Battle of Stalingrad, only 6,000 survived the Gulag and returned home.^[25] Many of these prisoners, however, had died of illness contracted during the siege of Stalingrad and in the forced march into captivity.^[26]

Probably the worst of the camp complexes were the three built north of the Arctic Circle at Kolyma, Norilsk and Vorkuta.^[27][28] Prisoners in Soviet labour camps were worked to death with a mix of extreme production quotas, brutality, hunger and the harsh elements.^[29] In all, more than 18 million people passed through the Gulag,^[30] with further millions being deported and exiled to remote areas of the Soviet Union.^[31] The fatality rate was as high as 80% during the first months in many camps. Immediately after the start of the German invasion of the Soviet Union during World War II, the NKVD massacred about 100,000 prisoners who awaited deportation either to NKVD prisons in Moscow or to the Gulag. Michael McFaul, in his New York Times article of 11 June 2003, entitled 'Books of the Times; Camps of Terror, Often Overlooked',^[32] has this to say about the state of contemporary dialogue on Soviet slavery:

It should now be known to all serious scholars that the camps began under Lenin and not Stalin. It should be recognized by all that people were sent to the camps not because of what they did, but because of who they were. Some may be surprised to learn about the economic function that the camps were designed to perform. Under Stalin, the camps were simply a crueler but equally inefficient way to exploit labor in the cause of building socialism than the one practiced outside the camps in the Soviet Union. Yet, even this economic role of the camps has been exposed before.

What is remarkable is that the facts about this monstrous system so well documented in Applebaum's book are still so poorly known and even, by some, contested. For decades, academic historians have gravitated away from event-focused history and toward social history. Yet, the social history of the gulag somehow has escaped notice. Compared with the volumes and volumes written about the Holocaust, the literature on the gulag is thin.

(The article draws attention to Anne Applebaum's Pulitzer Prize winning text Gulag: A History ^[33])

Non-punitive prison labour

In a number of penal systems, the inmates have the possibility of a job. This may serve several purposes. One goal is to give an inmate a meaningful way to occupy their prison time and a possibility of earning some money. It may also play an important role in resocialisation: inmates may acquire skills that would help them to find a job after release. It may also have an important penological function: reducing the cruel monotony of prison life for the inmate, keeping inmates busy on productive activities, rather than, for example, potentially violent or antisocial activities, and helping to increase inmate fitness, and thus decrease health problems, rather than letting inmates succumb to a sedentary lifestyle.^[34]

The classic occupation in 20th-century British prisons was sewing mailbags. This has diversified into areas such as engineering, furniture making, desktop publishing, repairing wheelchairs and producing traffic signs, but such opportunities are not widely available, and many prisoners who work perform routine prison maintenance tasks (such as in the prison kitchen) or obsolete unskilled assembly work (such as in the prison laundry) that is argued to be no preparation for work after release.^[35] Classic 20th-century American prisoner work involved making license plates; the task is still being performed by inmates in certain areas.^[36]

A significant amount of controversy has arisen with regards to the use of prison labour if the prison in question is privatized, a phenomenon present in a few areas of the United States, where goods produced through penal labour are regulated through the Ashurst-Sumners Act which criminalizes the interstate transport of such goods.

Present-day prison work programmes and work release programmes may or may not be classed as penal labour (depending on whose definition is used—whether the punitive component is present), but one of the reasons why a high imprisonment rate perennially concerns some citizens is that people with socioeconomic power (business owners, lobbying their politicians) who develop an affinity for the cheapness of prison labour have an inherent conflict of interest that could easily give them incentive to find pretences for making sure that plenty of working-class people end up arrested and convicted, even if on minor charges. This is because prison labour can be less expensive to their businesses than non-prison labour, and it can also depress wages for non-prison labour by competing economically against it. For example, in the US, metal fabrication work that normally commands wages in the USD 12–18 per hour range can sometimes be undertaken by prison or work release programmes at USD 5–8. The common sociological argument on this topic is a cui bono argument that perhaps socioeconomically dominant people have financial interests in maintaining a status quo in which there are many ways for the working poor to go astray of the law, and not so many for them to work their way out of poverty honestly. This argument has implications for the War on Drugs; the fact that a common part of American ghetto culture is taking a risk at lucrative drug trade work and hoping not to get caught, in an environment of poor employment otherwise, looks suspicious from this view. It shares aspects with debt bondage that was common in the 19th century, as, for example, brothel madams or coal mining companies would find ways to keep their workers [supposedly] in debt to them ("I owe my soul to the company store"), in order to apply coercive pressure to keep young women from leaving the prostitution business or to keep men from leaving their underpaid coal mine work. Although the people of U.S. business management and U.S. jurisprudence today would never agree that such motives drive their choices, the social-science argument is that society must be vigilant to keep subconscious conflict of interest from undermining attempts to improve socioeconomic conditions among the working poor.

The advent of automated production in the 20th and 21st century has reduced the availability of unskilled physical work for inmates.

ONE3ONE Solutions, formerly the Prison Industries Unit in Britain, has proposed the development of in-house prison call centers.^[38]

See also

• Galley slave
• Convict lease
• Chain gang
• Trusty system
• Ashurst-Sumners Act
• Coproduction of public services by service users and communities
• UNICOR

Notes

References

• McGarry v. Pallito 2nd Cir 2012

Further reading

• Douglas A. Blackmon. Slavery by Another Name: The Re-Enslavement of Black People in America from the Civil War to World War II (2008)
• Matthew J. Mancini. One Dies, Get Another: Convict Leasing in the American South, 1866-1928 (1996)
• Alex Lichtenstein. Twice the Work of Free Labor: The Political Economy of Convict Labor in the New South (1996)
• David M. Oshinsky. "Worse than Slavery": Parchman Farm and the Ordeal of Jim Crow Justice (1996).

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