The Review, Volume I, No. 9, September 1911

The state’s property right in the prisoner’s labor exists by virtue of the 13th Amendment of the Constitution of the United States which provides that slavery or involuntary servitude may be a punishment for crime, after due process of law. This property right the state may lease or retain for its own use, the manner being set forth in state constitutions and acts of legislatures. To make this of material value the prisoner’s labor must be productive. The distribution of the product of the prisoner’s labor inevitably presents the problem of competition. The confounding of the evil of penal servitude with the methods of production and the methods of distribution which have grown out of it has produced a confusion in the thought underlying prison labor regulation by legislative enactment.

The usual penological analysis of prison labor into lease, contract, piece-price, public account and state-use systems is impossible to use in an economic analysis of the labor conditions involved. Economically two systems of convict production and two systems of distribution of convict-made goods exist; production is either by the state or under individual enterprise: distribution is either limited to the preferred state use market or through the general competitive market. In the light of such classification the convict labor legislation of the current year shows definite tendencies toward the state’s assumption of its responsibility for its own use of the prisoner on state lands, in state mines and as operatives in state factories; while in distribution the competition of the open market, with its disastrous effect upon prices, tends to give place to the use of labor and commodities by the state itself in its manifold activities. Improvements like these in the production and distribution of the products mitigate evils, but in no vital way effect the economic injustice always inherent under a slave system. The payment of wage to the convict as a right growing out of his production of valuable commodities is the phase of this legislation which tends to destroy the slavery condition. Such legislation has made its appearance, together with the first suggestion of the right of choice allowed to the convict in regard to his occupation. These statutes still waver in an uncertain manner between the conception of the wage as a privilege, common to England and Germany, and the wage as a right as it exists in France. The development of the idea of the right of wage, fused as it is with the movement towards the governmental work and workshops, cannot fail to stand out in significance when viewed from the standpoint of the labor movement.

The expression of these tendencies found in the legislation of 1911 comes to view in divers states and a confusion of statutes in which every shade of development is present. While no state legislated to give new powers of leasing or contracting for the labor of prisoners and one only, Idaho, extended the field of its present leases, twenty-one made some provision for the state’s assumption and operation of industries: eight, California, Idaho, Indiana, Missouri, New Jersey, North Dakota, Ohio, and Wyoming, provided in some manner for the state’s consumption of the manufactured articles; and six, California, Indiana, Missouri, New Jersey, Ohio, and Wyoming, established laws for the regulation of prices and standardization of commodities. The prisoner received compensation for labor in six states, Florida, Kansas, Michigan, Nevada, Rhode Island, and Wyoming; his dependent family was given assistance in five, Colorado, Maine, Massachusetts, Missouri and New Jersey; while Nevada gave him the right to choose between working on the roads or working indoors. The New York farm and industrial colony for tramps and vagrants is of significance. Florida met the peonage issue by a provision for working off fines during imprisonment. The antagonism of organized labor to the distribution of the products of the convict’s labor on the open market resulted in the passage in Montana, Oregon and California of laws requiring branding of convict made goods. The New Jersey and Wyoming laws, which are especially complete, are summarized below.

In a word, the economic progress in prison labor shown in the legislation of 1911 is toward more efficient production by the elimination of the profits of the leasee, more economical distribution by the substitution of a preferred market where the profits of the middleman are eliminated in place of the unfair competition with the products of free labor in the open markets, and finally the curtailment of the slave system by the provisions for wages and choice of occupation for the man in penal servitude.

_New Jersey._--The sale on the open market of the products of convict labor of any state penal institution is prohibited after the expiration of existing contracts. A preferred market is established consisting of all manufacturable articles consumed by the state and sub-divisions thereof. A prison labor commission is created to so regulate the penal industries that the greatest amount consumable by this preferred market will be produced. They are to publish a list of all possible articles of manufacture and grant releases when articles cannot be supplied. Penal officers are required to keep all physically capable convicts employed, not to exceed nine hours a day except Sunday and holidays, on productive work or in receiving industrial and scholastic instruction.

Yearly budgets are to be sent on October 1st to the commission by all purchasing officials in the state. The penal institutions are to report fully regarding all convict labor and its productive power together with the cost of production. A uniform system of accounting is to be established, together with a standardization of commodities to be manufactured, on which is to be affixed a fair price. Agricultural pursuits are to be given preference and the products sold as above, except that the surplus products may be sold at advertised auction to the general public once in six months unless they are of destructible character and require more immediate sale. Counties and municipalities are to conform to the state plan but may employ the prisoners for their own use. Charitable institutions are allowed to manufacture for their own use. Prisoners’ families dependent on charity are relieved by the commissioner of charities at the rate of fifty cents for every day the prisoner works, but this relief fund is limited to 5 per cent. of the value of all goods produced. The services of charitable societies are to be used for making investigations of families. The estimates of added appropriations needed to carry this into effect are to be included in annual estimates. The commission reports to the governor.

Wyoming.--The state board of charities and reform and the warden constitute a state commission on prison labor, to regulate according to its best judgment the employment of the state convicts so that they may acquire a knowledge of a trade at which they can earn a livelihood upon release. The labor of the convicts is to be upon products for the state and sub-divisions of the state, and public officials cannot purchase in the open market, unless upon release by the commission. The price is fixed at the market price, and the type of articles may be standardized. Prisoners, in the discretion of the commission, are to receive a graded compensation, in no case more than 10 per cent. of earnings of the institution. Surplus earnings may go to a prisoner’s family, but may never be used in buying food or clothing beyond that of common usage in his class; the balance, paid on release, is subject to draft.