Prison Industries Enhancement Certification Program

The Prison Industries Enhancement Certification Program (PIECP) is a United States federal statutory program. First passed in 1979, it authorizes state prisoners to be privately employed, a practice that has generally been banned since the early 1930s. Specifically, the PIECP offers parameters under which states may set up their own Prison Industry Enhancement (PIE) programs, allowing prisoners to be employed in private business enterprises. Since the first of these programs was implemented, PIE programs have been established in nearly every state. Despite the argued benefits, the Program is not without controversy. Numerous abuses of PIE programs have been recorded since its inception. In response, there have been several adjustments to the PIECP meant to address some of the major issues, but it remains to be seen what effect these will have.

Background

Prison labor in the United States has a long and painful history. By the 1930’s, however, recognizing the inhumanity of forced penal labor and, likely more importantly to Congress , the competitive advantage that those employing penal labor enjoyed, legislation was enacted to stem the use of inmate labor. (1) The Ashurst- Sumners Act of 1935 made the interstate transfer or sale of prisoner made goods across state lines a federal crime, effectively stopping the use of inmates in the production of goods in prisons and by private companies.(2)

By the late 1970’s, shifting ideological views on the proper role of prisons and the proper method of rehabilitation caused a renewed interest in prison labor. The midcentury view of inmates as patients that needed to be cared for and ‘cured’, fell out of favor.(3) Proponents of increasing productive labor by prisoners came from both the political right and left. The former was adamant that criminals were being treated too leniently at the expense of the taxpayer, while the latter was concerned that the therapeutic approach of rehabilitating prisoners was both creating a false stigma of inmates as ‘sick’, and guaranteeing that they wouldn’t have the skills necessary to survive in the outside world at the end of their sentences.(4)

In 1979, Congress carved out a huge exception to Ashhurst-Sumners with the PIECP.(5) First enacted as part of the Justice system Improvement Act, it was expanded further in 1984 under the justice Assistance Act. In 1990, the Crime Control Act authorized the Program’s continuation indefinitely in fifty jurisdictions. The Program deregulated many of the federal prohibitions on the use and sale of penal labor in interstate commerce. While the program did not repeal Ashurst-Sumners, its effect was to nullify the Act’s application to prison industries that are conducted under a certified PIE program.(6)

The Program

While the PIECP allows each state (and in certain instances individual counties) to set up its own specific program model, whether it be contracting out inmates to private businesses directly, or manufacturing in-house for sale to private companies,(7) in order to be certified the programs must meet various criteria.(8) Most of the conditions set forth by the program are centered on alleviating the two main problems that prison labor traditionally faced; exploitation of inmates, and unfair competition for companies not utilizing prison labor with a corresponding negative impact on the local labor market.(9) The provisions are numerous. Among other things, they include a requirement that inmates be paid fairly, at the higher of minimum wage or the prevailing market in the industry, that participation in the program be voluntary, and that industry members be consulted about the possible impact implementation of a program may have on the product and labor markets.(10) The certification is carried out by the Bureau of Justice Administration (BJA) which, under the Program, is responsible for ensuring that each PIE program is implemented according to the outlines set forth in PIECP and additional guidelines that have been periodically issued by the BJA.(11)

As of 2012, over 45 separate jurisdictions at the state and county level have certified programs in place, though the actual number of prisoners involved remains quite limited.(12) For the last several years there were approximately 4500 – 5000 prisoners enrolled in programs across the country, only a small fraction of the inmate population in the United States. Nevertheless, these figures represent a significant and continuous increase since the program’s inception. (13)

Private employer participants in the program tend to be small to medium sized business, operating out of approximately 200 different work centers nationally.(14) Over the years, inmates enrolled in PIE programs have been placed in industries as diverse as electronics, apparel, and food manufacturing. Some of the more well-known companies who have or are currently making use of inmate labor under a PIE program include Shelby American Inc., Misty Harbor, Floyd Wilcox & Sons, and Tropical Hawaiian Products.(15)

In theory the Program is supposed to be beneficial to all parties involved. Inmates receive training and experience in marketable skills that can be used to find employment once their sentences are over.(16) Participation is voluntary and work conditions are meant to mirror real life working environments, theoretically eliminating the abuses that were historically endemic in penal labor.(17) Because a percentage of the inmate’s wages are automatically deducted in order to offset the expense of their prison terms, state and local governments benefit as well, as do taxpayers who are the primary source of revenue for prison costs.(18) A percentage of inmate wages are also redirected to victim compensation funds, an arguably appropriate rehabilitation for the inmates and of economic benefit to the state and taxpayers.(19)

The Program is also meant to protect the economic injustices typically associated with penal labor. Because the PIE programs require that employers pay market wages, and that industry representatives be consulted on the impact that penal labor may have on the local business environment, concerns of unfair economic advantage from cheap labor and the related risk of non- inmate worker displacement are both supposed to be alleviated.(20)

Criticisms

Despite the potential, if not actual, benefits of the PIECP, there have been numerous instances of recorded abuse in its implementation. One of the most prevalent has been continued findings of inmates not receiving fair pay.(21) Largely unprotected by the Fair Labor Standards Act, inmates rights, especially an entitlement to fair wages, is governed by the PIECP requirements.(22) While employers are entitled to pay market wages, which for unskilled workers might be low, inmate wages are often kept at minimum levels even as experience rises.(23) Often employers pay far below minimum wage, keeping the inmate workers in “training,” and paying them accordingly.(24) This, of course, has resulted in the displacement of more costly non-prison workers.(25)

Similarly, while participation in the Program is supposed to be voluntary, inmates have not always been made aware that up to eighty percent of their already low income is automatically redirected towards prison costs, compensation funds, and employers themselves as “reimbursement” for training.(26) In certain instances, inmates were not even told that participation in the first place was voluntary, though recorded instances or accusations of the latter has been rare.(27)

Likewise, PIE Program contracts, while supposed to be conducted through an open bid system, accessible to all businesses that meet the state requirements, have also shown to be heavily politicized.(28) In Wisconsin for instance, the Department of Corrections awarded a significant contract to a glove manufacturer who happened to be a major campaign contributor of the state governor. In a heavily secretive process, the contract allowed for the manufacturer to produce goods well below market cost, and the contract specifically disallowed the Department of Corrections from contracting with any of the manufacturer’s competitors.(29)

There is another major criticism leveled against the PIECP. Many of the participants in PIE programs never get a chance to use their skills in the outside world because either their sentence length or their age makes the likelihood of them ever working upon release minimal.(30) Even prisoners who are released with a significant amount of employable years ahead find it difficult obtaining a job, despite their experience, because of the stigma they bring as prospective employees.(31) One of the main benefits that the program is supposed to offer is, therefore, non-existent.

The BJA has made efforts to address these and other problems. Additional guidelines to the act were issued both in 1985 and then again in 1999, by clarifying and adding to the original Program’s provisions.(32) For instance, whereas originally a PIECP employer’s word that inmates were voluntarily participating was deemed sufficient, signatures are now required from inmates showing they understood ALL the terms of their employment.(33) In regards to wages, the original act was ambiguous as to which types of inmates and jobs were entitled to market wage.(34) This meant that many inmates who were assigned to tasks not directly involved in production, for example those given janitorial duties, were not paid market wage.(35) The 1999 amendments made it clear that ANY “notable” jobs for which similarly situated private business would incur costs must be compensated fairly.(36) Likewise, the level of consultation now required with business and union leaders on a program’s’ potential harm to the local labor market and overall business environment, is much greater that it was previously.(37) Nevertheless, because of remaining ambiguities, difficulty in monitoring, and the lack of standardization amongst various PIE programs, abuses continue to occur (38). Nor do these additional BJA guidelines change the fact that inmates may never get a chance to benefit economically from the skills the Program is supposed to offer them.

As PIECP begins its fourth decade, it remains to be seen to seen to what extent, if at all, the Program has achieved success in its stated objectives. Actual research measuring its effects has been extremely limited and potentially biased.(39) Whether or not the BJA and Congress’ efforts to curb the Program’s abuses will prove effective likewise remains open.

Primary Source

One of the only studies actually conducted to measure long term effects of the PIECP was carried out by researchers at the University of Baltimore. The correlative study seemingly suggests that inmates involved in the program have an easier time finding employment upon release. As well, past participants of PIE programs seem to have lower recidivism rates compared to other prisoners. Promising results though they are, the results must be taken with more than a grain of salt. The study itself is severely limited in scope, the numbers of subjects used limited. And like all correlative studies, it is often impossible to distinguish between correlation and causation. This is especially true in this instance, as inmates who participate in PIECP are self-selecting, and it is possible, if not likely, that is not the Program but characters already possessed by the inmates themselves that lead to more positive post release results. The study itself is also potentially biased, for though conducted by independent researchers, was entirely funded by the BJA itself. See the study attached.

* 214608.pdf: PIECP Correlative Study

-- SaarWarnerLipton - 19 Dec 2012

Notes

1 : Misrahi, James J. “Factories with Fences: An Analysis of the Prison Industry Enhancement Certification Program in Historical Perspective” Am. Crim. L. Rev. 411 (1996): n. pag. Web. 19. Dec. 2012.

2 , 3 , 4 , 5 , 6 , 7 : Id.

8 : Hauck, Brian. “Prison Labor”. Harv. J. on Legis. 279 (2000): n. pag. Web. 19. Dec. 2012.

9 , 10 , 11 , 28 , 29 , 32 , 34 , 35 , 36 , 37 : Hauck

12 : Moses, Marilyn and Cindy Smith PHD. “Factories Behind Fences: Do Prison ‘Real Work’ Programs Work?” NIJ Journal 257 (2007): n. pag. Web. 19. Dec. 2012.

13 , 14 , 15 , 39 : Moses

16 , 17 , 18 , 19 , 20 : Misrahi

21 : Sloan, Robert “The Prison Industries Enhancement Certification Program: Why Everyone Should be Concerned” PLN 21 (2010): n. pag. Web. 10. Dec. 2012

22 : Quigleya, William P. “Prison Work, Wages, and Catholic Social Thought: Justice Demands Decent Work For Decent Wages, Even For Prisoners.” Santa Clara L. Rev. 1159 (2004): n. pag. Web. 19.Dec. 2012

23 , 24 , 27 , 30 , 31 , 38 : Sloan

25 : Sloan; Hauck

26 , 33 : Hauck; Sloan