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Monday, December 09, 2019

Constitution
Photo by Kiichiro Sato/AP

On November 8, voters in Alabama, Louisiana, Oregon, Tennessee, and Vermont will decide if they’ll strip their state constitutions of language that allows slavery in cases of a criminal conviction. Nineteen states have constitutions that include such wording that technically permits slavery and involuntary servitude as criminal punishments. In 2018, Colorado voters were the first to remove the language from the state’s founding document by ballot measure, then Nebraska and Utah did the same in 2020.

Taking a stand against slavery isn’t brave nor should it require deliberation. Sometimes these ballot measures do, even though they pass pretty overwhelmingly. Two years ago, Utah’s got 80 percent approval, Nebraska’s garnered 68 percent. Although the ballot measure didn’t pass in Colorado in 2016, it lost by a third of a percentage point‚ it went on to attract approval from more than two thirds of voters; it passed by 66 percent in 2018.

If someone’s looking for advice on how to vote on the amendment in their particular state, voting no won't really change much in the short term, so there isn’t much reason to vote any other way but yes.

Prison labor systems are still operating in Utah and Nebraska, even after the language change, and Colorado inmates are currently litigating whether they can be compelled to work, which begs the question of what the change in language can or will accomplish — and how.

“Whether prison labor changes after the passage of these ballot [measures] will depend entirely on whether correctional administrators believe that their current system is one of slavery and involuntary servitude. Many probably won’t and then it’ll be on advocates again to demand change through litigation. It’ll be up to the courts to eventually decide what is and is not slavery and involuntary servitude,” said Bianca Tylek,executive director of Worth Rises, a non-profit advocacy organization dedicated to changing prisons and the criminal legal system, in a text interview.

Jennifer Turner, principal human rights researcher for the American Civil Liberties Union, says that these revised amendments will prohibit facilities from forcing incarcerated people to work but the question is when.

"While these measures may require administrators to reconsider wages and other labor protections, they are unlikely to automatically confer employment rights to incarcerated people,” said Turner in an email interview.

“Because U.S. law also explicitly excludes incarcerated workers from the most universally recognized workplace protections and courts have often held that incarcerated people are not employees under federal laws such as the Fair Labor Standards Act and National Labor Relations Act," she continued, "securing employment rights for incarcerated workers will likely require additional legislation."

If prison labor is slavery, it’s not clear why changing a state constitution in this way doesn’t have the immediate effect of ending mandatory unpaid prison labor. None of the three states that have changed their constitutions pay nothing to incarcerated workers; they pay penny wages.

One of the five states that may change after taking voters’ temperatures on this issue on Tuesday — Alabama — doesn’t pay at all. A strike is ongoing there in the Yellowhammer State right now, with workers challenging unfair and unworkable sentencing schemes, including parole. Interestingly, none of the strike demands have to do with wages or working conditions. Rather, they demand an end to life without parole sentences, the opening of conviction integrity units, and modifications to other sentencing and parole laws.

If the amendment passes there, immediate closures and stoppages in Alabama may follow. The remaining four states will likely go the way of Colorado, Nebraska, and Utah: prison work opportunities will remain the same.

The reason why little changes as a result of these amendments is that right now, prison labor isn’t chattel slavery; workers aren’t legally considered property. Convict leasing, a practice that assumed the prison owned the worker, has been banned in all 50 states since 1928.

Prison labor may be involuntary servitude but it can’t be if it’s voluntary. Inmates want to work; the federal prison system's 25,000-person waiting list proves that they don’t have enough jobs for those who want one.

There are good reasons for incarcerated laborers to want their jobs. Working maintains sanity in a place that rarely protects it; two-thirds of federal prisoners say they haven’t received any mental health care. The stakes are high for this failure. The risk for suicide in prisons is high; three to ten times higher than the general population. People in prison work to save themselves from the carceral experience.

No one’s clear on whether the law should require prison labor to be voluntary as well as paid, or that involuntary paid labor doesn't constitute involuntary servitude. But if these ballot measures are about securing a minimum or other wage for incarcerated workers as experts believe they might be — indeed, the state of California refused to consider changing the state constitution because Gov. Gavin Newsom’s administration predicted it would cost billions of dollars to pay a minimum wage to 65,000 workers — then governors, sheriffs, and wardens could snatch away programs that benefit prisoners and preserve their sanity.

It’s hard to talk about this or even ask a question about it without being shot down as a racist or someone unfeeling toward people in custody. That’s how people win debates these days; mention slavery to give the issue gravitas — and end up closing off nuanced conversation.

These ballot measures should pass, but anyone who worries about what their ultimate impact will be on incarcerated workers isn’t a bigot or a slavery apologist. If anything, that questioning voter may understand that the confluence of labor, accountability, profit, and harm is a gray area. It’s much more complicated than advocates make it out to be. Providing better answers to the other questions would have made what should be a no-brainer an even easier sell.

Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns now appear regularly in The National Memo.


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On February 4, 1960, two Los Angeles police officers noticed "scar tissue and discoloration on the inside" of Lawrence Robinson’s right arm, and "what appeared to be numerous needle marks and a scab which was approximately three inches below the crook of the elbow.” Officers Brown and Lindquist didn’t witness Robinson committing a criminal act; they simply noticed his arm and engaged with him. The officers said Robinson admitted to using drugs in the past so they arrested him for the crime of “being addicted to the use of drugs”; at the time, Section 11721 of the California Health and Safety Code criminalized simply being an addict.

Robinson denied any admission of narcotics use at trial, yet a jury convicted him of the misdemeanor and the court sentenced him to 90 days in the Los Angeles County Jail and two years of probation.

Robinson’s appeal of his conviction ended Section 11721. His bid to overturn the judgment against him reached the Supreme Court of the United States where the Court invalidated the law by deeming it unconstitutional; by punishing a person for a medical condition, the statute violated the Eighth Amendment prohibition against cruel and unusual punishment. Sadly Lawrence Robinson died of a “probable overdose” in a Los Angeles alley on August 5, 1961, according to the Los Angeles Times.

Our highest court was much more enlightened 62 years ago. But the Robinson decision was important for another reason besides medicalizing addiction: it extended Eighth Amendment protections to those held in state and municipal custody; the framers of the Bill of Rights had anticipated the Amendment’s applying only to the way the federal government treated people it confined.
At the time, 218,830 people were incarcerated in state and federal prisons on felony convictions. The Robinson decision should have been a boon for all of them and the millions who would come after. But it wasn’t.

Since the decision, here’s what doesn’t get Eighth Amendment protection from the courts: subjecting an inmate to needless exploratory surgery to find contraband in his rectum that was never there, or denying surgery to a man who had headphone mesh pushed further into his ear, against his eardrum, by a correctional nurse. Elbow macaroni with maggots doesn’t cut it for “cruel and unusual.” Nor do poisonous metals like radium and lead in the drinking water. Even causing pain during capital punishment doesn’t violate the Eighth Amendment in this country.

While no court has even contemplated Greg Corley’s case — after sheriffs dislodged a stent by handcuffing him behind his back and the Denton County Jail withheld medical treatment for months, until Corley’s arm was beyond remedy — the chances are low that any court would decide that compromising the blood supply to his arm was cruel or unusual punishment.

The case of Greg Corley, who was denied care to the point that amputation was the only way to save his life, suggests the Eighth Amendment isn’t sufficient to protect inmates’ overall health, much less their emergency medical needs. While Corley never made an Eighth Amendment claim about his arm — that would happen either through a lawsuit alleging that jail officials violated his civil rights or through a petition for a writ of habeas corpus that claims his incarceration was itself illegal — he’d probably lose it.

The Eighth Amendment covers only people within a system of punishment, not the ones without. Free individuals don’t need constitutional coverage; regulatory law protects them. But Aaron Littman, assistant professor of law and deputy director of the COVID Behind Bars Data Project at the UCLA School of Law, noted in a recent Yale Law Journal article titled “Free-World Law Behind Bars,” regulation “recedes” in correctional spaces.

In fact, regulation recedes so much that many times, the doctors who treat prisoners aren’t licensed to do so, with instances of unlicensed doctors providing care to incarcerated populations in Kansas and Louisiana. In 2018, the National Commission on Correctional Healthcare issued standards for healthcare providers in corrections, and one of the standards is that they actually be licensed; nevertheless, licensure of a prison doctor cannot be assumed.

When I go to a hospital, I know that my constitutional rights don't have anything to do with whether I'm treated by a licensed physician in accordance with certain standards. It's not a constitutional question. It's a regulatory question. And that same thing needs to be true in a prison," said Littman said in a recent interview.

Marty Buchanan, the doctor assigned to the detention center that held Corley, is licensed to practice medicine in the State of Texas, without any reported instances of malpractice or misconduct. But if ignoring a gangrenous limb like Buchanan did and offering the patient a benzodiazepine tablet rather than an examination is the standard of care provided by a doctor with an unblemished record, expecting better care from those who have lost their licenses seems overly optimistic.

Other kinds of critical public institutions like hospitals and schools are the subject of very significant amounts of regulation because we think, ‘Oh well, what they do is important. It may affect whether somebody lives or dies.’ And yet people don't actually have voluntary choice about whether they're in them. So it's really important that we make sure that they're meeting basic standards, that they're operating in ways that are keeping people safe and healthy,” Littman said.

Correctional healthcare affects whether or not someone dies; Greg Corley still lives in fear of an unexpected blood clot until his arm is removed. And no one who’s in custody has any choice about their care which only heightens the government’s duty toward its ward
But somehow, over 62 years of the Eighth Amendment applying to anyone held in custody, no one, not even physicians treating inmates, has effectively taken up the cause, at least not effectively, to raise the standard of care for incarcerated people.
Littman says the reason for this is that advocacy for incarcerated people has focused on constitutional law for the most part.

“There are things that [constitutional claims have] failed to do, [are] increasingly failing to do in addressing conditions in prisons and jails. I think it's time, not to pivot away from constitutional litigation, but add to the toolkit. Different kinds of regulatory advocacy to try to say, ‘no, no, incarcerated people are members of our community just like anyone else [are needed]. And actually, they need to be protected by the same health and safety and wellness systems,’” he said.

Even while he languished in Texas county jails, Greg Corley was a member of the community and he deserved the same care as anyone who walked into any Texas hospital. He didn’t get it, at least not in time. By itself, his case is a clarion call for more regulation — and perhaps less United States Constitution — behind bars. Incarceration in this country has become so bad that even our founding document can’t protect the vulnerable anymore.


Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns now appear regularly in The National Memo.