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How might organized labor be engaged in ending mass incarceration?
One intuitive answer focuses on characterizing incarcerated people as workers and the carceral state as a system of labor exploitation. This approach asserts a shared identity and a shared foe. The easiest way to make the argument highlights how employers may substitute hyper-vulnerable incarcerated workers for rights-bearing “free labor.” But the strategy has been known to backfire: Rather than engendering solidarity, it can instead amplify hostility by portraying incarcerated people as a threat to non-incarcerated people’s jobs.
A different path to solidarity highlights how the carceral state reaches into the heart of so-called “free” labor markets. What I call a “carceral labor continuum” stretches from the prison, through “work-release” programs, to parole work requirements, to “working off” criminal fines and fees, and more. As a result, carceral labor is not a problem confined to the prison, and it provides no neat divide between any “us” and “them.”
In this fashion, analyzing the carceral state as a system of labor governance not only deepens our understanding of imprisonment but also revises standard accounts of labor markets. That, in turn, creates new ways to understand organized labor’s interests—not simply in protection against substitution, but also in rolling back the exercise of carceral power.
Workers as Substitutes Across Prison Walls
Ivan Kilgore’s contribution to this series highlights how viewing imprisonment through the lens of work risks obscuring as much as it illuminates. Inasmuch as doing so conjures up images of conventional market labor and the respected figure of the “worker,” it may erase the particularities of carceral violence and how incarcerated people’s labor sits within racial capitalism.
This risk of economic reductionism about carceral labor, however, derives in part from impoverished accounts of work more generally. How might engaging the awkwardness of “carceral labor” help to unsettle those customary understandings of work and workers? And how might this crossover plant seeds of solidarity, as suggested at the outset? Looking to a carceral labor continuum can change how we think about work performed by people who are not currently incarcerated, and yet who labor under the threat of future incarceration.
To begin, there’s little dispute that incarcerated people in the United States routinely work, albeit not uniformly and with significant variations in the kind of work—and how willingly they do it. This point can be made most simply by emphasizing the economic value of the goods and services produced by their labor. This value is most recognizable when the organization obtaining carceral labor (resisting, for now, the label “employer”) sells those products. That might involve a private firm selling prison-made goods to another firm, a government-run “prison industry” selling its wares to another arm of government, or countless other variations. The same point holds even when there is no sale and yet carceral labor produces goods or services that otherwise would have had to be obtained by hiring conventional employees, or by purchasing from a contractor who employed workers in turn. Even courts hostile to treating incarcerated people as “workers,” in the sense of legally protected employees, have conceded this point.
The crucial insight here is that starkly different institutions of labor governance (the market, the prison, etc.) may yield products that are interchangeable. Historically, this point has been central to the politics of organized labor’s engagement with carceral labor: If products are interchangeable, so are the workforces creating them. The capacity of the prison to brutally exploit incarcerated people provides a weapon that can be wielded against “free labor,” by substituting carceral production at lower wages and greater control. Or by threatening to do so if non-incarcerated workers demand too much.
As Rebecca McLennan has shown, this threat to “free labor” fueled union campaigns against prison labor in the nineteenth and early twentieth centuries. It has similarly shaped the legal consensus that emerged from those campaigns. When the Supreme Court upheld Congress’s 1929 foray into restricting interstate sales of goods produced by incarcerated people, it explained that “free labor, properly compensated, cannot compete successfully with the enforced and unpaid or underpaid convict labor of the prison.” The few modern judges open to employment rights for incarcerated workers similarly have relied upon “the pernicious competitive effect of cheap labor.”
And it is this—the potential that one can substitute for the other—that establishes a straightforward, material connection between incarcerated and non-incarcerated workers. Linked interests, however, do not guarantee solidarity. Framing the problem in terms of substitution invites solutions that stray far from abolishing carceral labor or its exploitation, let alone abolishing prisons. For example, organized labor’s pre–World War II campaigns focused on blocking substitution by forbidding the sale of goods produced by incarcerated workers and by limiting direct government utilization of carceral labor for work that might otherwise be privately contracted, such as road construction. This approach, notably, does not directly challenge the practice of incarceration itself, and it still allowed for extensive reliance on prison labor for most “state use”—without any protections to benefit or empower incarcerated workers.
Rather than directly banning carceral labor that could result in substitution, an alternative strategy seeks to deter it by making carceral labor more expensive and constraining prison authority over it. This is how labor and employment rights for incarcerated workers traditionally have been justified, as an instrument to protect non-incarcerated workers. For instance, when Congress in the 1970s began loosening some restrictions on private firms selling goods produced by incarcerated workers, it required them to pay not just minimum but prevailing wages, and also to cover workers compensation and similar employment benefit costs. But again, protecting “free labor” did not mean substantive gains for incarcerated workers, whose nominal wages in this program may be diverted (up to 80 percent) to fund their own incarceration, among other things, and who may be excluded from receiving work-related government benefits while incarcerated. Tellingly, the most full-throated judicial endorsement of employment law protections for incarcerated workers took pains to note how the anti-substitution rationale implies no “particular sympathy for prison inmates.”
Workers as Market Actors
To be sure, there are scattered examples of the labor movement allying more robustly with incarcerated people to support their organizing under the banner of workers, unions, and strikes. But the difficulty is that a crucial gap lies between recognizing that incarcerated people work and recognizing a social status as “workers,” with attendant claims to rights, dignity, solidarity, and belonging—claims that would threaten the legitimacy of incarceration itself. What drives a wedge between the existence of “work” and the status of “worker” is, as Kilgore argues, the brutal racialized hierarchy between the “free” citizen and someone punitively incarcerated. Meanwhile, outright opponents of labor rights for incarcerated workers advance the mirror-image claim that conferring such rights would cheapen the superior status claims of so-called “law-abiding” workers.
The distinctly dignified status of the citizen-worker—a figure historically thought of as white and male in the American imaginary—is articulated in significant part by characterizing them as a market actor. They are understood as “free labor” in a double sense: free from enslavement and free to act as the choosing subject of market transaction. In this fashion, “free labor” occupies the distinct sphere of the market economy, separated from domains governed by alternative logics, whether those of criminal punishment or family life (e.g., unpaid housework). Courts exclude incarcerated workers from employee status on the ground that they occupy a “separate world” in which their relationship to the prison is “penological, not pecuniary,” in contrast to a “true economic employer-employee relationship” structured by “contractually bargained-for exchange.”
The idea that the nonmarket character of carceral labor renders it noneconomic falters in the face of the substitution analysis discussed above. Rather than equating the economy with markets, market work can be seen as just one among many ways to structure the relationships and institutions in which work occurs. From here, it is tempting to assert simply that anyone who works is a worker. Doing so rightly challenges the privileged status of the market form. But it does so at the cost of radically separating work from all social context: On this view, all work is the same (as work) regardless of the specific relationships and institutions in which it occurs, and all who work should be labeled “worker” with the attendant social consequences. There is some force to this view of production as fundamental, but it also underwrites an economic reductionism that renders an incarcerated person’s interest in abolition secondary to their worker status. And, at any rate, the evidence is weak that this thin conception of “worker” in fact mobilizes sustained solidarity beyond prison walls, despite its occasional genuine tactical benefits.
Carceral Labor Outside of Prison
Another way to foster solidarity builds a different bridge across the gap between “separate worlds”: This alternative rejects the presumptively noncarceral, “free” status of the market. I mean this in a narrower sense than the notion that capitalist property rights—enforced by criminal law—compel us all to “work or starve.” Instead, I mean that a vast swath of ostensibly free labor, especially among low-wage workers, occurs under immediate threat of state violence.
As noted at the outset, a carceral labor continuum links together a wide array of situations where non-incarcerated people work under threat of future incarceration. Like prison labor, a number are rooted in a criminal conviction: parole or probation conditions mean that not getting or keeping a job may trigger (re)incarceration, and the obligation to pay criminal fines and fees legally entails an obligation to earn the money with which to pay—or face incarceration. Even without a conviction, in criminal legal supervision structured as “diversion,” work requirements are again ubiquitous and violations may trigger full prosecution, conviction, and incarceration. Broadening out further, we can include economic obligations that originate outside the criminal legal system but are carcerally enforced. Child support enforcement quite explicitly involves duties to work (in order to pay) under threat of jail via civil contempt or criminal nonsupport, as well as formalized work programs modeled after welfare work enforcement systems. Although less studied and seemingly less elaborated, custodial parents’ direct support obligations under the rubric of “neglect” likewise entail implicit work obligations enforceable either criminally or through the state violence of child removal.
These latter examples—of work under threat of incarceration outside of criminal punishment, or racialized state violence outside incarceration—also highlight continuity with immigration detention and deportation. This continuity is particularly important because labor advocates and the labor movement have come to understand—through a long and still-contested process—how employers gain power to intimidate, retaliate against, and divide workers when the state’s deportation threat hangs over them and can be invoked by employers. Immigration is also salient because there, too, substitution arguments historically have played a prominent role. While sometimes offered as rationales for protecting immigrant workers’ labor and employment rights, they also are easily directed toward intensified exclusion, at the border or in the workplace.
Notably, the integration of immigrants’ rights and labor movements has been most robust in the context of immigrant workers already present in conventional, mixed-status workplaces. And it has extended far beyond inclusion in general labor and employment rights to combatting the apparatus of immigration enforcement, ranging from efforts to end employer participation in the E-Verify system to the creation of workplace “sanctuary” policies mandating employer noncooperation with immigration authorities. Indeed, the convergence of labor and immigrants’ rights movements has manifested in meaningful efforts toward mass legalization of undocumented immigrants, distant though that prospect remains in the current political environment. Furthermore, as immigration scholars have long noted, interior immigration enforcement that affects immigrant workers in U.S. workplaces cannot easily be separated from enforcement at the border. For this reason, the U.S. labor movement’s pushback against workplace enforcement has flowed into broad calls—legible, if not yet widely adopted—to abolish ICE even as liberalizing new entries produce the sharpest conflicts.
These examples show the promise of thicker, and dynamic, forms of solidarity that can arise between workers connected not just by the abstract possibility of substitution but by shared workplaces and workplace struggles. These struggles are grounded not merely in abstract “worker” status but in the specificity of institutions shaping labor markets, including immigration policy.
Stirrings of Anti-Carceral Unionism
One hopeful indication that something similar could grow out of highlighting the carceral labor continuum—and thus the presence of carceral power within conventional market work—comes from Laborers’ Local 79’s pathbreaking campaign against New York City “body shops.” In addition to incorporating a critique of racialized mass incarceration into its analysis of labor exploitation, the campaign’s initial policy victories have included not only employer-focused regulation but also changes to parole rules. In this way, anti-carceral unionism emerges not from broad concerns over economic substitution but instead from the practical demands of workplace organizing in an institutional context shaped by penal supervision.
To be sure, such a trajectory is hardly inevitable. Shifts in the labor movement’s stance on immigration have been hard fought and the product of self-conscious organizing for solidarity. One important question is whether efforts to dismantle carceral power directed against non-incarcerated workers can then move back along the continuum to engender solidarity with incarcerated workers. Another is whether pushback against the use of carceral power specifically to discipline labor can flow into challenging carceral power more generally. But as with immigration enforcement, the porousness of these boundaries—as people move over time between carceral labor inside and outside the prison, and as all aspects of carceral power shape carceral labor to some extent—suggests at least the possibility of building progressively more robust and far-reaching solidarities. One way to do so may be to emphasize that not only work but carcerality itself occurs on both sides of prison walls.