Law360 Access to Justice Feature Examines Rights of Workers Behind Bars
A multi-part investigation into the corporate carceral state's attempts to nullify the 13th Amendment, one paper cut at a time.
Workers Behind Bars
This weekend, Law360’s Daniela Porat and a team of her colleagues with the Access to Justice issue released a free, multi-article investigation into the state of modern legal challenges to modern-day carceral enslavement, wage theft, and forced labor. Readers of this Substack will find the article on the labor and employment rights of immigrants useful and informative in tracing at least part of where we stand today.
In ‘Working While Caged’, Marco Poggio takes a took at modern slavery through the lens of Andony Corleto, a California firefighter who happens to be incarcerated, and thus, works to save the lives and property of members of the State who enslave him. Max Kutner has an audio article featuring Michael Hancock, a former senior lawyer in the Department of Labor who now works at Cohen Milstein. Max also interviews Members of Congress who are attempting to remedy some of the abuses through legislation. Irene Spezzamonte unpacks the Fourth Circuit’s recent decision in favor of Baltimore County pretrial detained folks, and other cases around the country that advance the ball for incarcerated workers on the wage fight. Finally, Emmy Freedman has an interview with ACLU’s Sonia Kumar about the impacts these modern day slavery practices have outside the wire.
The upshot of these pieces is that a growing number of lawyers, courts, lawmakers, and electorates are waking up to the demands incarcerated workers have made for nearly as long as prison slavery has existed. It’s taking time, and it’s still falling short of the full promise of the 13th Amendment, which forbids enslavement unless a person is specifically sentenced to it as punishment for a crime—an outcome we learn from an article in this series is only available to sentencing judges in two states.
We find, when reading all of these pieces together, that the slave economy is alive and well in the U.S.; that criminalization and pre-trial detention are a mechanism of keeping that economy from collapsing; and that the justifications cagers use to extract profits from people in cages are based more on ideology than law. There is an entitlement to own the labor of the person they’re incarcerating that lives within the minds of the imprisoners, but not in the text of the law that authorizes imprisonment. It’s taken more than a decade, but courts are increasingly coming to grips with this reality, and incarcerated people are increasingly finding success in those courts.
One leading edge of the fight to end forced labor of migrants and refugees by ICE contracts is missing from this otherwise thorough and exceptionally well-reported series: The role international law plays in forbidding forced labor inside ICE prisons.
I promised weeks ago to do a summary of the Barahona v. LaSalle (M.D. Ga.) decision. I still intend to do so. Until then, it’s simply worth noting that the court in that case denied a motion to dismiss the plaintiffs’ Alien Tort Statute claim. Those claims draw directly from this law review article by Project South’s Azadeh Shahshahani and Kyleen Burke. You can hear about the treatment Nilson Barahona, the lead plaintiff in this case, received at Irwin and Stewart in this amazing film, The Facility, by Seth Freed Wessler.
What’s Next for Challenges to Labor in Detention?
Under the Biden Administration, detained immigrants and their advocates around the country sought assistance from state and federal labor officials to vindicate the rights of workers in ICE detention centers. Whether through DALE certifications (IYKYK), certifications as survivors of trafficking, unfair labor practice charges by the NLRB, or workplace safety charges from Cal OSHA, incarcerated workers found new fulcrums of power and novel ways to protect themselves.
Under the present administration, many of those fulcrums have been eliminated. In their place, however, could come much more impactful and wide-ranging challenges as corporate accountability litigators tune back in to the horrors of for-profit ICE detention. Below the paywall, I offer one such billion-dollar challenge. I’m happy to share it with anyone who’s not working for the government or the corporations on request.