Made in the USA: Race, Trade, and Prison Labor

Introduction

Justified on redemptive and rehabilitative grounds, prison industries in the United States are thriving. It is hardly surprising that as federal and state prison industries have grown, so have prison industries that rely on prison labor for private sector profit, and that such labor is primarily performed by minorities, particularly African Americans. In a new, Orwellian twist, the prison industry has also managed to hitch itself to the populist, anti-international trade wave that has reinvigorated economic nationalism. Add “Buy American” and “Made in the USA” to the purported benefits of prison labor for yet another layer of rhetorical flourish.

This Article provides a general overview of the prison labor industrial complex and examines the relationship between big business and prison labor in both state and federal systems. It also provides necessary historical background, particularly the racial dimensions at the root of state and private exploitation of prison labor, arguing that race and incarceration in the United States cannot be separated. The Article further explores the structural complexity intrinsic in prison labor because it embodies both economic and rehabilitative objectives and thus does not fit neatly into the conventional categories of market or non-market work, creating conceptual difficulties in both analysis and proposed solutions. As a result, prison workers are not deemed employees and, therefore, are not eligible for the minimum wage afforded other workers. The last part of the Article examines the wildly inconsistent case law that addresses the application of the Federal Labor Standards Act (“FLSA”) and argues that the profit-making, economic character of prison work makes it a market activity that entitles prison workers to the minimum wage mandate of the FLSA.

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This article aims to point out that the understanding of freedom in the U.S. legal system is too narrow since it disregards other significant aspects of freedom.