Incarcerated Persons Rights

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In a society where the line between justice and punishment is often blurred, understanding and advocating for the rights of those behind bars is more critical than ever. This page addresses federal law related to issues surrounding the rights of incarcerated persons, from fair treatment and access to healthcare to rehabilitation and reintegration into society. Depending on your state, there may be additional state law regarding labor protections for incarcerated individuals, which are not covered in this section. 

1. Can incarcerated people be forced to work? What work an incarcerated person can be constitutionally permitted to do depends on whether that person is identified as a prisoner or detainee.

Prisoner:

A prisoner who has been convicted of a misdemeanor or felony can be forced to do a wide range of job functions. This applies to individuals who are appealing a court’s decision in their underlying criminal case. 

Detainee:

In general, detainees cannot be forced to do most types of work. However, most courts also find that it is not unconstitutional for a jail to force a detainee to do some “general housekeeping chores” (e.g., distributing meals, scrubbing dishes, doing laundry, cleaning common areas like showers or hallways, taking out trash, etc). 

Some courts have held that a detainee can be required to perform only “personally-related chores” that are “reasonably related to the [detainee’s] housekeeping or personal hygienic needs.” Unfortunately, courts have disagreed on whether this means only having to clean in and around an detainee’s cell or general chores related to the common areas that serve the entire detention center or jail. 

It is important to understand that a working incarcerated individual is not considered an employee of the prison. Unless a state law requires compensation, prisons have no requirement to pay an incarcerated individual for their labor. Work programs in prisons and jails are considered “rehabilitation programs” that help incarcerated individuals build skills. 

2. What types of work exists for incarcerated persons?

According to a 2022 report by the ACLU and the Global Human Rights Clinic at The University of Chicago Law School, prison work can be divided into six primary categories, but five of them are most relevant. 

Incarcerated persons work for the upkeep of the facility.

  • Over 80% of federal and state prison jobs focus on the upkeep of the facilities prisoners are in. These types of jobs include custodial services, laundry, food services, administrative work, groundskeeping, and essential services (e.g., working in infirmaries, the barbershop, commissary rooms, or the library).

Incarcerated persons produce goods and services for sale to state agencies/companies.

  • 6.5% of federal and state prisoners work for government-owned corporations that produce goods and services sold to governmental agencies. These goods can include items such as street signs, license plates, office furniture, and governmental uniforms (e.g., military fatigues). Services usually include agricultural harvesting or animal management.

 

  • UNICOR (officially called the Federal Prison Industries Program) is a wholly owned federal government corporation that uses federal prisoner labor to produce and sell~17,000 types of products and services to governmental agencies. As of 2021, over 16,000 federally incarcerated workers were employed in the program. Most federal agencies must prioritize purchasing UNICOR products/services.

 

Incarcerated persons work on public work projects for states, cities, and nonprofits.

  • Over 80% of states offer or require incarcerated persons to do public work assignments, sometimes called “community work crews,” in which states or cities contract with state Departments of Corrections to use prisoners for a range of public works projects. This can include: constructing public spaces (e.g., parks, schools, cemeteries), community clean up (e.g., roadways, hazardous spills, landfills), and environmental response (e.g., forestry work, firefighting, rebuilding structures after natural disasters).

Incarcerated persons work for private companies producing goods sold to the general public or other private companies.

  • Less than 1% of incarcerated persons work directly for private companies. Through the Prison Industry Enhancement Certification Program (PIECP), private companies can contract with federal, state, local, and tribal carceral agencies to produce goods using labor from federal and state incarcerated persons. Due to concerns that prisoner-made goods would undercut pay for private workers, incarcerated persons doing this work are guaranteed the same rate that someone doing a similar job in the same area would get paid. However, incarcerated workers in PIECP jobs often receive a small fraction of these wages due to required deductions (e.g., court-ordered fees, victim compensation programs, child support).

Incarcerated persons do agricultural work, which cuts across several of these categories.

    • Some incarcerated persons work in agricultural services that produce food items that are consumed in carceral facilities or sold through private markets (via PIECP). These types of jobs can include meat processing and canning, raising livestock, milk and egg production, operating and maintaining mills, and crop harvesting. While only 2.2% of the incarcerated persons nationwide do agricultural work, in some states, it can be as much as 17% of prisoners.

3. Do I have a right to employment if I want a job?

No. There is no requirement that a prison or jail supply you with a job. Incarcerated persons and jails may not, however, be allowed to refuse to give you a job as a means to retaliate or discriminate against you. For more information on anti-discrimination protections for incarcerated persons. See Question 6. For more information on retaliation, see Question 9. 

4. Do I have the right to choose the type of job I get?

You do not have a right to choose a particular job. That being said, an incarcerated person may not be able to deny you a particular job assignment in order to discriminate against you. See Question 6 for more information on anti-discrimination protections. 

5. What wages am I entitled to for my labor?

Most likely, you do not have the right to be paid minimum wage for your work while in prison. Almost all labor performed within a prison or jail, even for an outside company, is not protected by minimum wage laws.

If you work outside the prison for a private employer, there is a very small chance that you might be able to receive minimum wage. If you are paid directly by the private employer and there is not a prison officer supervising your work, there is a chance that you fall under employee protections including minimum wage.

6. What anti-discrimination protections exist in the prison-labor context?

Even while you are in prison, you still have constitutional rights. For incarcerated laborers, this means that a prison cannot exclude you from particular job assignments because of your identity. There are court decisions that prevent prisons from discriminating on the basis of race, age, disability, or sexual orientation in determining work assignments. 

Furthermore, incarcerated persons with disabilities are protected by the Americans With Disabilities Act (ADA) and The Rehabilitation Act of 1973. Incarcerated persons with a wide range of disabilities are allowed to ask the prison to provide them with a reasonable modification to access programming that their disability otherwise prevents them from being able to participate in. This means that if your disability prevents you from being able to perform a particular job without a reasonable change to it, you can ask the prison to make that change. However, a prison may be able to reject the job modification if your disability could be a direct threat to others, your modification would fundamentally alter the job, or if your modification would cause undue administrative or financial burdens.

7. Do I have a right to organize and/or form a union?

Incarcerated persons do not have a right under the First Amendment to form labor unions. Not only can prisons prohibit incarcerated persons from organizing a union, but they are also allowed to discipline incarcerated persons for individually or collectively engaging in work stoppages or for protesting prison regulations with work stoppages.  Prison officials might even be able to discipline incarcerated persons just for possessing written material that encouraged engaging in work stoppages and other disruptive behavior.

8. What federal workplace safety protections is the prison expected to enforce?

Federal workplace protections established by agencies, like the Occupational Safety and Health Administration (OSHA), and laws, like the Fair Labor Standards Act (FLSA), generally do not apply to incarcerated persons. Any workplace protections that might cover incarcerated persons would primarily come from the state law where the incarcerated person is incarcerated or guidelines set by the specific correctional facility in which an incarcerated person is being held. These protections vary significantly across states and correctional facilities.

If a workplace condition in prison is so hazardous, it could violate the prohibition on cruel and unusual punishment in the Eighth Amendment to the U.S. Constitution. In the rare cases where a court found that a prisoner’s workplace safety experience was dangerous enough to violate the Eighth Amendment, the incarcerated person had to show that the prison officials knew of the substantial workplace safety harms and intentionally disregarded them (e.g., making an incarcerated person use a chainsaw to cut a tree without any training).

9. Do I have any protection against retaliation?

An incarcerated person cannot legally retaliate against you for exercising a constitutional right. Although you do not have a right to a particular job (or to any job at all), it is possible that a prison cannot fire you from your job in response to you filing a grievance. It is less clear whether a prison can transfer you to a different job in response to filing a grievance, because some courts have held that this is allowed but others have held that it is not. This might depend on the nature and duration of the new job assignment.

10. What rights do workers have in immigration detention centers?

The law around labor rights in immigrant detention centers is still developing. It is possible that immigrant detention centers cannot force or pressure detainees to work. Immigration detainees who choose to work, however, might not be entitled to be paid minimum wage. Whether you are entitled to minimum wage or not in these centers might depend on what state you are in. For example, immigrant detainee workers may be entitled to minimum wage in Washington state, but not in Colorado.

11. I think my rights have been violated. What should I do?

In almost all cases, the first step will be to file a complaint through the prison’s internal grievance system. It is crucial to be aware of any deadlines that your institution has in place to file a grievance. If you do not go through the entire administrative grievance process before filing a lawsuit, it is likely that your claim will be dismissed. 

If you are unhappy with the outcome of the grievance process, it is possible that you could file a lawsuit against the prison or prison officials involved. There are, however, a lot of barriers in place that make it challenging for prisoners to pursue legal action. For more information on prison litigation, see this ACLU Fact Sheet for more information on incarcerated person litigation.

 

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