Abstract
In response to increased interest from states and companies as well as momentum on the issue of private prison labour in the past few decades, this article offers a comprehensive model framework aimed at reconciling profit-driven objectives with prisoner rehabilitation. The article addresses the debate surrounding prison labour for private for-profit entities and proposes a model that attempts to remedy some of the issues and criticisms that arise from the practice. Drawing on the Forced Labour Convention, 1930 (No. 29) of the International Labour Organisation, the framework integrates certain provisions from the standard, emphasising public supervision, consent and labour guarantees. Equally, it tries to address concerns of unfair competition and job displacement while promoting ‘meaningful' work and encouraging post-release employment of prisoners. Recognising the need for some practical feasibility and in a bid to shift the incentives for private entities to employ prisoners, from ‘cheap’ labour to fairer work practices, the model argues that other benefits such as tax breaks or subsidies may help align private and rehabilitative goals. As governments have turned to the private sector to increase work opportunities for prisoners, this paper argues that a more equitable and rehabilitative approach should follow, representative of societal values.
Keywords
Introduction
In the past few decades, ‘private prison labour’ or, in other words, the employment of prisoners by private companies, has gained significant momentum and interest from states and companies. While the practice of having prisoners work for private benefit is not novel, 1 the extent to which private companies are involved in the prison system has significantly increased in recent times. 2 At the same time, the objectives of the prison system and prison labour have, at least on paper, evolved from a blatantly punitive approach to a focus on rehabilitation and reintegration in many justice systems across the world and in international law. 3 The involvement of private entities in an area which would typically have been considered to be a core function of the state merits some attention due to the issues that arise from the practice. Private prison labour is controversial for several reasons, including the fact that it can be profit-driven, there is a risk of exploitation, there may be conflicts of interest, a potential impact on rehabilitation, and a lack of public oversight or control. While the employment of prisoners by the state also shares many of these concerns, the involvement of private entities exacerbates existing issues such as unfair competition, but also introduces other challenges including private profit and exploitation. With increasing attention being paid to prison labour for several reasons including labour shortages, 4 work during the COVID-19 pandemic, 5 as well as a push to rehabilitate prisoners through work, 6 there has been growing demand for the employment conditions of prisoners to be approximated to those of free workers. 7
This article first discusses private prison labour and then explores the issues that arise from the practice. The third section examines the provisions of the International Labour Organization's (ILO) Forced Labour Convention (No. 29) of 1930, particularly Article 2(2)(c), one of the built-in exceptions to forced labour. The discussion examines how the interpretation of the provision by the Committee of Experts on the Application of Conventions and Recommendations (CEACR) has led to a distinction between public and private prison labour, setting the stage for further analysis of the distinction. Section four explores the moral and philosophical objections to the practice and, in conjunction with the previous section, lays the groundwork for the development of what I describe as a ‘fair and practically feasible’ model framework of private prison labour. The model is developed in the final section of the article and represents an attempt to begin reconciling concerns that arise from the employment of prisoners with private companies.
Unpacking prison labour: definitions and categories
Prison labour is not a modern concept. It has been used for centuries, albeit with evolving objectives. Roca and Aliaga's definition covers the key aspects of the practice: [Prison labour is an] employment activity undertaken by people subject to freedom-restricting measures. This work is usually remunerated and takes place in the context of a labour organisation managed by the actual prison service or by some kind of private or public-sector business organisation, with the ultimate goal of facilitating the working inmates’ reintegration into society.
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Work in prisons can be separated into three categories: (a) maintenance tasks essential for the facility's daily operations; (b) work commissioned and managed by prison authorities; and (c) work for private entities. Naturally, there may be variations as to the different work arrangements depending on the country and whether a facility is privately managed, for instance. In fact, it is important to clarify that work for private entities may be carried out within private prisons, but also within public prisons. While there may be distinct policy considerations and justifications to consider, such as public supervision, contractual obligations to provide work, or economic considerations, the framework model presented later in the article is intended to apply to both situations. Moreover, prisoners are usually not covered by employment law and are therefore excluded from many labour and social security rights.
12
Thus, in addition to not being covered by minimum wage legislation,
13
prisoners do not have the right to, inter alia, form or join a trade union, the right to collective bargaining or the right to take industrial action such as strike action.
14
Yet, as shown, prisoners can work for private entities during their time in prison, and there are several ways in which this can take place. This kind of work is understood as private prison labour for the purposes of this article. The ILO has identified examples of private prison labour:
Prisoners may work with a private entity as part of an educational or training scheme; Prisoners may work in workshops within the prison to produce goods sold to private entities in the open market; Prisoners may work outside the prison for a private entity as part of a pre-release scheme; Prisoners may provide labour within prisons, contributing to the running of correctional facilities managed by private entities; and Prisoners may work with private firms outside the prison during the day, returning at night.
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As we will see in the section that follows, all of this type of work is, at first glance, incompatible with the Forced Labour Convention.
Exploring the ILO's approach to private prison labour
The Forced Labour Convention of the ILO, signed in 1930, intends to suppress all forms of forced or compulsory labour and is one of the most widely ratified ILO Conventions with 181 ratifications. 16 Article 2(1) of the Convention defines forced or compulsory labour as ‘all work or service which is exacted from any person under the menace of a penalty and for which the said person has not offered himself voluntarily.’ Through one of the exceptions built into the Convention, prisoners sentenced for a crime are in fact precluded from protection against forced or compulsory labour, allowing states to compel them to work. Article 2(2)(c) in effect enables states to force prisoners to work if the following conditions are met: (a) they have been convicted of a criminal offence in a court of law; (b) the work or service they undertake is carried out under the supervision and control of a public authority; and (c) they are not hired to or placed at the disposal of private individuals, companies or associations. 17
The first criterion, that prisoners must be convicted and sentenced to be able to take up work, as provided for by the Convention, means that prisoners cannot be employed if they are on remand, and they must be sentenced by a Court of law.
Secondly, the requirement that the work or service performed must be carried out under the supervision and control of a public authority means that, within prison workshops or areas where prisoners work for private entities, a public supervision mechanism must be in place. As shown by Fenwick, this requirement is intended to avoid prison labour only serving private interests and to avoid a clash between the rehabilitative objectives of the state and the profit motive of a private entity. 18 In practice, while the CEACR has not specified how far public supervision must go, the Committee stated that ‘supervision and control must be effective, systematic and regular and should be considered a matter for the services of Government labour inspectors.’ 19 In 2016, the CEACR accepted that Germany's practice satisfied this requirement as the Government indicated that ‘while the staff of the private enterprises have the right to issue work related instructions, the supervision of prisoners and all decisions related to inmate treatment remain the responsibility of the penal enforcement authority.’ 20
While it may seem that these requirements prohibit prisoners from working for private entities, if prisoners voluntarily choose to work, their employment by private entities does not breach the Convention. 21 This is because such a situation does not fall within the exception outlined in Article 2(2)(c). Yet, one could question whether prisoners’ consent to work can ever be voluntary. 22 To overcome this, the CEACR first maintains that it is necessary to obtain ‘the formal, freely given and informed consent of prisoners’ 23 in writing. 24 This requirement is important as it seeks to ascertain that prisoners ‘have offered themselves voluntarily, […] without the menace of any penalty, including the loss of a right or a privilege’, 25 and that they agree to their employment conditions (hours, pay, etc.). The CEACR has observed that a penalty can include a ‘loss of a right or a privilege (advantage), as in the case where an unfavourable assessment of behaviour is taken into account for non-reduction of sentence.’ 26 Voluntariness and the absence of a penalty on prisoners are treated as separate and cumulative conditions by the CEACR. Moreover, the Committee has observed that ‘the most reliable and overt indicator of voluntariness can be gleaned from the circumstances and conditions under which the labour is performed and whether those conditions approximate a free labour relationship.’ 27 These have been identified as comprising ‘the level of wages, the extent of social security, and the application of regulations on safety and health.’ 28 However, the conditions are not to be equated with those of free workers. As mentioned by the CEACR, although certain discrepancies in the level of wages and social security entitlements are normal, health and safety safeguards must be the same as for free workers engaged in the same activities. 29 A further explanation into what these entail for the ‘fair and practically feasible’ model of private prison labour will be explored later in the article.
This interpretation of the Convention by the CEACR has consequently created a sharp division between public and private prison labour. 30 States can in effect force prisoners to work without fulfilling any of the aforementioned requirements, whereas prisoners working for a private entity must consent to the work and be provided with conditions that ‘approximate a free labour relationship.’ The distinction is seemingly based on concerns of exploitation and profit. However, Milman and Sagy convincingly argue that this distinction has been eroded and is no longer helpful, and they instead propose a ‘hybrid prison labour’ approach. 31 While I agree with their perspective on the evolving dynamics, it is crucial to acknowledge the nuanced differences between private and state employment of prisoners. The following sections build upon the distinction and seek to clarify it.
Moral and philosophical arguments against private prison labour
This section discusses the moral and philosophical arguments against private prison labour, examining issues such as exploitation and conflicting objectives, and the idea that prison labour is a non-delegable of core state function.
Exploitation and conflicting objectives
An often-voiced criticism of prison labour, and more specifically private prison labour, is that it is immoral to profit from the work of incarcerated workers who are often compelled to work, and that the practice amounts to exploitation. This argument rests on the idea that prisoners are often paid very low wages, are not covered by employment law protections, and that those profiting from their work are using them as a source of cheap labour. As put by Evans and Goldberg, in a U.S. context: ‘for private business prison labour is like a pot of gold. No strikes. No union organising. No health benefits, unemployment insurance, or workers’ compensation to pay. (…) [Prisoners work] at a fraction of the cost of free labour.’ 32 The legal framework, including rules on pay for work in prison, varies from country to country. In Germany, prisoners that work are paid between €1.37 and €2.30 per hour, amounting to around €11 to €18.40 per day, 33 while in France the law stipulates that prisoner wages cannot be lower than the hourly rate fixed by Decree No. 2010-1635 at 45% of the national minimum wage when working for ‘private concessions’, 34 or in other words, private entities. 35 Depending on the type of work, prisoners can thus be paid between €2.30 to €5.18 per hour. 36 Wages for prisoners are usually quite low, and in some cases, the difference between their wages and the total revenue can be quite disproportionate. In the state of New York in the USA, prisoners were being paid between 16 to 65 cents an hour, while generating a revenue of $53 million in 2019. 37 In this case, Corcraft, the industry programme within the New York Department of Corrections and Community Supervision, used the revenue to cover the expenses associated with the operation of the programme, 38 yet in other instances, the profit made by companies is largely disproportionate to the wages paid to prisoners. 39
Moreover, the argument of immorality and exploitation also extends to the fact that prisoners working are not entitled to the same labour protections as free workers. 40 In other words, they are not covered by employment law as they are not recognised as ‘workers’ or ‘employees.’ While prisoners are usually provided with some protections including partial social security and occupational safety and health, they tend not to have the right to form a union 41 nor have the right to strike. Most importantly, in some jurisdictions, they are compelled to work 42 or to undertake some sort of activity which can be work. Thus, thinking back to Evans and Goldberg's observation, despite the differences between the U.S and European systems, the exploitation argument makes much more sense when we unpack what protections working prisoners have. It is not difficult to understand why a private entity would move its operations into prisons: lower wages, partial social security payments, a constant labour force, no union to negotiate with and no strikes. Satz, while examining private prisons, also shares this view and argues that if imprisonment, and by extension, prison labour, is viewed as a purely economic enterprise, it then fails to acknowledge and address the social, legal and ethical implications, such as the deprivation of liberty and the need for rehabilitation, and is therefore morally wrong. 43
Also attached to this discussion is the risk of exploitation of prison labour by private companies, due to blurred or conflicting objectives. Today, most criminal justice systems agree that one of the primary objectives of prisons and criminal sentences is to rehabilitate prisoners and avoid reoffending, 44 as provided under international law, 45 regional law 46 and national laws. 47 On the other hand, by delegating this responsibility to private entities, whose main objective is to generate profit, there is a risk that ‘private business goals (…) conflict with the reformative purpose of prisoners’ labour.’ 48 In other words, as private entities seek to profit, rehabilitation could become a secondary objective, which goes against the central objective pursued by criminal justice systems. Consequently, as highlighted by Reverend Dr Selby in relation to private prisons, but also applicable by analogy to private prison labour, if prisons are integrated into the commercial sector, is there an interest for them to reduce the regime in a way that would undermine the restorative goals of prisons? 49 Creating an economic interest in the maintenance of a prison population seems questionable. As will be explored in the next section, the argument of differing objectives of private entities and the state in this context resonates strongly with the view that certain functions of the state, such as prisons and prison labour, should not be delegated to private entities and that doing so can create perverse incentives.
Prison labour as a non-delegable core state function
Entrusting prisons in their entirety and delegating prison services, such as work, to private entities has been criticised on several grounds. Some scholars have argued that imprisonment is a non-delegable core function of the state, as in their view the state holds the moral duty to punish people. 50 Field 51 and Radzinowicz 52 have argued that privatising the prison system leads to moral issues given that criminal laws must be applied by the state and that coercive powers cannot be entrusted. DiIulio also believes that any coercive powers must solely be exercised by the state, 53 because only the state holds the requisite legitimacy. 54 In other words, individuals that commit a crime owe a debt to society and the state, as they have violated the social contract. In this sense, the state derives legitimacy from the social contract, and consequently has the power to punish individuals. Therefore, it may be argued that the social contract is violated when these powers are entrusted to a private company. While these arguments against prison privatisation have their merits, it does not necessarily follow that the organisation or supervision of prison labour should equally be exempt from delegation to private entities. To apply these views onto prison labour, it must be argued that prison labour is a core state function rather than an auxiliary function which could be delegated.
As mentioned earlier, one of the aims of prison labour is to facilitate the rehabilitation and reintegration of prisoners. Building on this, scholars such as Rotman have observed that, under customary international law, states are under an obligation to rehabilitate prisoners. 55 In addition, the jurisprudence of the European Court of Human Rights provides that states have a positive obligation to ensure prisoners have a ‘real opportunity to rehabilitate themselves.’ 56 These views reinforce the argument that prison labour is in fact a core state function, distinct from other auxiliary functions such as laundry or catering, and that its delegation to private entities is improper. In fact, it is possible to argue that prison labour should be seen as a core state function given its nature and the objectives of rehabilitation and reintegration, which do not apply to other auxiliary functions.
Having shown the state's role in ensuring that prisoners have avenues for rehabilitation, the argument that prison labour is a core state function is reinforced by the need to ensure transparency and accountability in managing correctional facilities. As regards private prisons, public accountability has been a major point of contention, as discussed by academics such as Harding, 57 and can be applied to prison labour. Entrusting prison labour to private entities could erode public accountability and hinder transparency, which is one of the reasons for the CEACR's insistence on the public supervision criterion.
Our earlier discussion on the exploitation and conflicting objectives argument may also help us substantiate the view that prison labour is a core state function and some degree of public supervision or control over it is necessary to avoid such risks. It has been argued that privatising the penal system can lead to the ‘corrections commercial complex’, as described by Lilly and Knepper, 58 and is thus wrong. The argument rests on the idea that entrusting entities that have distinct objectives to those of the state may lead to other unwanted consequences. They maintain that if we begin privatising the penal system, private companies will have a financial interest in carceral populations remaining high, and even an interest in its increase. 59 Zedner adds that states resorted to privatisation as there was a need to increase prison capacity, and therefore placing an economic interest in the continuous growth of the prison system is at odds with the idea of reducing the number of prisoners. 60 This is a strong claim, and if we apply this to rehabilitation through work, the argument would be that private companies that employ prisoners are not necessarily inclined to ensure their rehabilitation and reintegration. Satz has made a similar point as regards private prisons, in that the companies involved in managing prisons may be inclined not to invest in rehabilitation programmes as avoiding reoffending is not in their interest. 61 Yet, this is not to say that states are ‘inherently pro-social and markets anti-social.’ 62 Prisoners are not necessarily shielded from exploitation and other issues when working for the state, yet the involvement of private entities can lead to the marketisation of the penal system and leads to these additional problems.
In this section we observed that prison labour can be argued to be a core state function since in contrast to other auxiliary functions, providing rehabilitative avenues to prisoners is a positive obligation imposed on states that is based on rehabilitative and reintegrative aims. Also, the consequences that emerge from the delegation of prison labour to a private entity, without retaining some degree of public supervision or control, are not conducive to the public good and thus reinforce the argument that prison labour is a core state function. However, core state functions have been privatised in several states and this article does not argue that they should never be, but rather that there must be some safeguards against potential risks.
Towards a model of private prison labour
Definition and explanation of the model framework
The ‘fair and practically feasible’ model framework for private prison labour encompasses several criteria that emanate from various considerations on prison labour for private companies, including rehabilitation and reintegration needs of prisoners, labour rights and the simple fact that private entities must create some benefit for themselves when engaged in activity. This section will describe the criteria that form the model framework. The purpose of this section is to begin to think about the construction of a framework that takes the aforementioned considerations into account and deals effectively with them. As several jurisdictions have allowed private entities to employ prisoners but do not recognise them as ‘workers’ under employment law, the model tries to align, as closely as possible, prisoners’ employment rights to those of free workers, while also trying to ensure the emphasis remains on rehabilitation, limiting unfair competition and job displacement, and remains feasible for private entities.
The ‘fair and practically feasible’ model framework can be divided into two main components: a fair component and a practically feasible component. The ‘fair’ component is made up of a set of criteria that include: some requirements of the Forced Labour Convention, measures to avoid unfair competition and job displacement, the promotion of rehabilitation and reintegration through the provision of work skills and habits (‘meaningful work’), and a post-release employment consideration requirement. The second ‘practically feasible’ component refers to idea that for private entities to be involved in the provision of prison labour, they must benefit from it in some way.
Identification and description of the criteria within the framework
Forced Labour Convention requirements
The ‘fair and practically feasible’ model framework incorporates the following requirements from the Forced Labour Convention: (a) prisoners must be sentenced; (b) the work or service undertaken must be carried out under the supervision and control of a public authority; (c) prisoners must consent to their employment in writing; and (d) labour guarantees must be provided, including wages, social security and regulations on safety and health. Having analysed these requirements earlier, this section details their meaning within the model framework.
As regards requirement (b), for the purposes of our model, the framework understands public supervision and control as having a state prison guard or prison employee supervise prisoners working, even though staff from the private employer may also be present. While this criterion could be argued to merely represent a ‘tick-box’ exercise, its inclusion in the model serves a dual purpose: to maintain public accountability, which is an often-raised concern on the privatisation of the penal system, 63 and ensure that coercive prison functions remain with the state.
Furthermore, the model proposes that prisoners be paid wages closer to the rate of free workers. Deductions may be made due to part of prisoner wages going to victim compensation or based on lower productivity and fewer working hours. 64 However, the model challenges the idea that private prison labour is simply cheap labour. Private companies that employ prisoners should not be incentivised simply because it is cheaper for them to produce in prison, as this brings about other issues as discussed earlier. Instead, companies that provide work for prisoners could be provided with a tax incentive or other benefit, while required to pay wages based on the compensation rate stipulated in a relevant collective agreement for the type of work they undertake, subject to those mentioned deductions. Additionally, prisoners should be covered by social security in the same way as outside workers, apart from unemployment benefits, as work should be voluntary. Occupational health and safety protection should be provided at the same level as those in a free employment relationship, which includes being compensated for accidents and occupational diseases. Ultimately, the model framework, like the CEACR, does not set a benchmark at present but requires that these conditions ‘should not be so disproportionately lower than the free market that it could be characterised as exploitative.’ 65
A mechanism to avoid unfair competition and job displacement?
The use of prison labour by private companies undoubtably raises issues of unfair competition and potentially of job displacement. While it is challenging to eliminate the risk of unfair competition and job losses completely, government policy could help limit the potential impact of the practice. In this context, unfair competition is understood as the situation where private entities benefit from using prison labour in a way that gives them an advantage over other businesses working in the same industry. It can also have an impact on jobs on the outside as the use of prison labour could lead to a reduced demand, potentially leading to job losses or reduced opportunities.
Employing prisoners is attractive to businesses given its reduced costs. While it is understandable why prison labour would be cheaper than ‘free’ labour, due to, inter alia, deductions on wages or fewer hours worked by prisoners, it should not lead to unfair competition and job displacement. In its current form, evidence seems to indicate that prison labour for private companies has an impact on local businesses. For instance, in Germany, a packaging company near Hannover was severely impacted by clients moving their packaging operations into prisons, shrinking the company size from 60 to two employees as their production costs were three times more expensive than producing in prison. 66 Scholars have argued that prison labour, and specifically private prison labour, leads to unfair competition and job displacement. Lafer, for instance, opposes prison labour and argues that it ‘takes decently paid jobs out of the economy [and] undermines the living standards and bargaining power of those who remain employed but whose firms are now forced to compete with prison industries.’ 67 Others, such as Atkinson and Rostad, have acknowledged that these may be consequences of prison labour, but maintain that the overall economic output for a country's economy outweighs these issues. 68 While this article does not seek to determine the benefit or the pitfalls of private prison labour, it recognises unfair competition and job displacement as a potential consequence and proposes measures to limit the impact.
Therefore, to reduce the potential of private prison labour leading to unfair competition and job displacement, several measures could be introduced, of which many concern employment conditions and arrangements. As discussed above, wages that are closer to those of outside workers, or based on a relevant collective agreement, should be paid to prisoners as this will help prevent companies taking advantage of cheap labour and gain an unfair advantage. Moreover, ensuring some social security benefits are provided is important. Given that work under the model is understood to be voluntary like in France, as mentioned earlier, the model proposes that the social security system applies in the same way to employed prisoners as for outside workers, except for unemployment benefits. 69 In fact, if in practice the model would lead to the same wages to outside workers being paid to prisoners working for private entities, it could be argued that there would be no risk of unfair competition as it would cost companies the same to employ a prisoner or a ‘free’ worker. It would therefore seem that the wages and social security requirements mitigate the risk of unfair competition. On the other hand, recalling the example of the German packaging company, this could nonetheless impact local companies and displace jobs, especially if companies employing prisoners are provided with another sort of benefit such as a tax break or subsidy, as will be discussed later.
A potential solution could be to place rules on direct competition with local businesses in the area or region of the prison to try and limit the direct impact on these businesses and to avoid job losses, for instance, a prohibition on providing work to prisoners in an industry that produces the same goods as a local company. As a result, the model framework would require that (e) a market analysis be conducted to prevent direct competition with local businesses or industries, and where necessary, the placing of rules avoiding direct local competition and job displacement. In contrast to other requirements of the framework, there are some complications with this, and further elaboration and development is needed to determine whether such a requirement is practical or even beneficial. For instance, would be what would amount to ‘local’? And how would local restrictions avoid unfair competition with other national or international companies? It could be that it is simply impossible to fully remedy unfair competition and job displacement for both public and private prison labour. Nonetheless, reducing its impact may be a step forward in contrast to current approaches.
Rehabilitation and reintegration: ‘meaningful’ work
In this article, rehabilitation is understood as a process of positive change for the offender in terms of personal growth, behaviour change, providing education and job training, but also maintaining human dignity. McNeill convincingly argues that rehabilitation in the context of imprisonment is multifaceted, and encompasses psychological, judicial, moral and social aspects, 70 aiming to reduce recidivism, prepare prisoners for release, and promote personal growth while respecting their dignity and human rights. The Committee for the Prevention of Torture emphasised that denying the possibility of rehabilitation dehumanises prisoners, highlighting the importance of rehabilitation not just for reducing recidivism, but also for upholding dignity and human rights in the prison system. 71 A significant aspect of the academic and institutional approach to rehabilitation focuses on equipping individuals with the necessary tools for successful reintegration into society. As defined by the United Nations Office on Drugs and Crime, rehabilitation includes: ‘opportunities for prisoners to obtain knowledge and skills that can assist them in their successful reintegration upon release, with a view to avoid future offending.’ 72 This article specifically examines rehabilitation through work, aiming to ‘ensure that prisoners receive skills which will assist them in finding employment upon release.’ 73
While different types of work may have distinct rehabilitative effects in terms of provision of skills, it also helps prisoners develop a sense of discipline and provides an opportunity for socialisation, thus fulfilling an important educational and therapeutic role. 74 To ensure that the work aids prisoners in developing skills, the ‘fair and practically feasible’ model, adding to the requirements developed in the previous sections, requires that (f) work given to prisoners be ‘meaningful’. Yet, grappling with the definition of ‘meaningful’ work in the context of incarceration presents significant challenges. Does meaningful work only include tasks which may be of economic value, to prisoners or to the employer? Or should it encompass broader aspects such as personal development and its potential for social integration? For the purposes of the model, I have framed ‘meaningful’ work as work that provides ‘employment skills and habits (…) [and] social and personal competence’ 75 to prisoners. Ideally, the skills provided to prisoners should also be relevant to the labour markets of today and the future, in other words, avoiding the training of prisoners in declining industries. Nonetheless, this definition seems to narrowly focus on their employability and may fail to consider other aspects such as those mentioned above. Therefore, in addition to providing employment skills and habits as well as social and personal competence, for work to be ‘meaningful’, within the fair and practically feasible model, it must respect an individual's dignity in that the opportunities offered must be more than simple menial tasks; it must engage and foster a sense of purpose and aim for long-term impact rather than short-term benefits. The use of the term ‘meaningful’ work presents challenges; however, the objective is to incorporate this concept within the model from a rehabilitation perspective rather than a personal one. The inclusion of this criterion seeks to prioritise rehabilitation within the ‘fair and practically feasible’ system of private prison labour, humanising the practice and aligning with the objective of reducing recidivism.
It could be argued that this requirement is redundant if the work provided to prisoners is consensual and conducted under conditions that approximate a free labour relationship, as per the previous requirements in the model. Yet, such an argument would fail to acknowledge that while work can be non-exploitative and consensual, it is not necessarily useful for a prisoner's rehabilitation and reintegration in the long term in terms of being trained or obtaining skills that would enable them to secure employment upon release. It may not fall under the definition of ‘meaningful’ as explored in this section.
Post-release employment consideration
This criterion of the model represents an obligation on part of the private employer to consider the continuation of employment of prisoners that were working within one of their managed workshops or were working for their benefit (as stipulated in their written prison employment contract) upon their release. It would not be an obligation to employ them, but rather to consider their potential employment. The idea behind this criterion is to ensure that the maximum possible number of prisoners that were employed during their time in prison by private employers then go into work following their release, which in itself could amount to an incentive for businesses to upskill prisoners during their employment. Its inclusion in the ‘fair and practically feasible’ model is partly inspired from the practice of Timpson UK of setting up Prison Training Academies that train prisoners during their time in prison and upon release are employed by the company. 76 While training is not exactly the same as private prison labour, which is the focus of this article, the model takes inspiration from the practice of employing prisoners with whom a private employer, or trainer in this case, have had contact with, thus forming a continuum of employment. Moreover, another source of inspiration for the development of this criterion is recent legislative changes in France regarding prison labour. 77 Under the new Article 719-11 of the French Criminal Procedure Code, contracts formed during incarceration can extend beyond release if both the detainee and employer agree. This provision aims to enhance professional integration and demonstrates progress towards successful reintegration through employment. Several companies in the UK actively recruit ex-offenders and some of these hire prisoners directly from prison. 78 Adapting this model for companies that provide work to individuals during their incarceration would also help increase the number of ex-offenders in employment post-release.
‘Practically feasible’
The second part of the framework seeks to ensure the feasibility of private prison labour. In other words, it intends to keep prison labour sufficiently attractive to private entities while aligning their incentives with the goals of rehabilitation and reintegration. While cost reduction may be a primary motivation for companies employing prisoners, shifting incentives could better serve rehabilitation and reintegration purposes. Instead of offering low wages, which may perpetuate exploitation and hinder rehabilitation efforts, alternative incentives could be provided to companies employing prisoners while they pay prisoners higher wages. These incentives could potentially include tax breaks, subsidies or grants to offset operational costs, training expenses or security measures, priority in being considered for relevant government procurement programmes, public recognition and reputation, streamlined administrative processes, research and development funding, or loaning unused state land or buildings to such businesses.
This idea has been discussed in the context of post-release employment. In December 2016, the UK Work and Pensions Committee made a very interesting and relevant recommendation for the purposes of our framework. They said: We recommend that the Government pilot the reduction of National Insurance contributions for those employers who actively employ ex-offenders. The Government should also consider other ways to recognise and reward employers who take corporate social responsibility seriously and actively employ ex-offenders. It could, for example, be a factor in procurement and commissioning decisions.
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Building on this and exploring some potential incentives that could be offered, Unlock, a registered UK charity, drafted a briefing report on financial incentives to encourage the employment of people with convictions, and certain incentives they explored are relevant for our proposal. 83 For instance, regarding the recommendation made by the Work and Pensions Committee on national insurance contributions reduction, Unlock maintains that it may not in fact be a very generous subsidy, amounting to around £2,500 for the median salary of £30,420. 84 Therefore, applying this to our model, it may not be sufficient to draw businesses into employing prisoners or to pay them higher wages for their labour. Another possible incentive is that of wage subsidies: providing companies that employ prisoners with a partial cost of the prisoners’ wages for a pre-determined term. 85 While these incentives can be criticised since they may themselves provide advantages to certain companies, the exploitation of prisoners as cheap labour due to low wages can be avoided to a certain extent. Naturally, several distinct incentives could be combined to provide several benefits for such companies.
Overall, if the goal of prison labour, including private prison labour, is to provide work to prisoners in the aim of facilitating their rehabilitation and subsequent reintegration, redirecting the incentives for private companies away from a purely profit-driven motives could help avoid conflicts between profit and rehabilitation, and potentially bring further employment for prisoners.
Conclusion
The proposed ‘fair and practically feasible’ model framework for private prison labour aims to establish a system that considers the rehabilitation and reintegration needs of prisoners, ensures that their labour rights are respected, and tries to address concerns of unfair competition and job displacement, if necessary. By integrating certain criteria from the Forced Labour Convention and implementing measures to prevent unfair competition, job displacement and facilitate rehabilitative work, the model attempts to create a fairer system of private prison labour within prison facilities. It emphasises meaningful work and higher wages, while also suggesting other incentives for private companies to participate. Its implementation could nonetheless face considerable challenges and if wrongly implemented, could lead to unfair competition and other of the issues it seeks to combat. On the other hand, as can be seen from current state practices, prison labour for private entities remains a considerable part of prison labour and of the rehabilitative approach. Consequently, while certain issues may persist, adopting such a system would help combat some of the larger problems. Moreover, the proposed model aligns with the current momentum in criminal justice reform, reflecting an increased need and discussion on rehabilitative approaches in prison. Moving forward, further research is essential to refine and add to the model framework as well as to evaluate its implementation. The analysis of current private prison labour systems against the framework could be a useful next step to determine challenges in its implementation and gaps in current systems.
Ultimately, the model framework not only aims to address the immediate concerns of private prison labour but also invites us to reflect on the broader implications of our criminal justice policies. What kind of society do we aspire to create? One that prioritises punitive measures, or one that balances punishment, rehabilitation, fairness and reintegration? As we consider these questions, it may become clearer that our approach to prison labour is a reflection our collective values and commitment to a more just and equitable society.
Footnotes
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
