In 2014, prisoners at the Aurora Detention Facility sued the company locking them up. These plaintiffs, immigrants who were imprisoned by Immigration and Customs Enforcement (ICE), claimed that the Denver-based private detention center violated the Trafficking Victims Protection Act by forcing them to do custodial labor “without compensation and under threat of solitary confinement.” Even when they were paid for other kinds of labor, the plaintiffs still cried foul, asserting that the $1 a day that GEO Group paid them was a violation of minimum wage law.
Though the minimum wage claim was dismissed by Colorado District Court Judge John Kane, last month Judge Kane allowed plaintiffs to move forward on their unjust enrichment and forced labor claims. And in even bigger news, the court ruled to allow class action certification — meaning as many as 62,000 prisoners and former prisoners could join on.
Judge Kane wrote: “Although representatives and putative class members have diverse backgrounds, their circumstances are uniquely suited for a class action. All share the experience of having been detained in the facility and subjected to uniform policies that purposefully eliminate nonconformity.”
Noting that most members of the class are impoverished and unlikely to be able to hire their own attorneys, Judge Kane determined “the questions posed in this case are complex and novel, but the answers to those questions can be provided on a class-wide basis.”
This news comes at a time when private prisons are experiencing a renaissance (or zombie awakening, depending on your perspective) under the Trump Administration. Immediately following the election, you might remember the stock market went a little haywire as uncertainty and shock sent some indices tumbling. But private prison stock immediately surged upward — and some prison company stocks have now more than doubled.
The Obama administration had determined private prisons were more expensive and less safe than government-run facilities, and sought to reduce or phase out their use by the Justice Department. Candidate Hillary Clinton outright called for their elimination. But in February, new Attorney General Jeff Sessions scrapped the Obama guidance, claiming that using private prisons would increase “flexibility.” Add to this Trump’s “law and order” stance that is likely to increase the country’s already staggering incarceration rates — especially among undocumented immigrants — and it’s easy to see why the private prison prognosis is cheery (well — at least for those investors willing to make their money through locking up other humans).
The increase of imprisoned people also means a growth in prison labor. In 2014, the New York Times reported that at least 60,000 prisoners worked in ICE detention facilities, which is “more than worked for any other single employer in the country.” By paying 13 cents an hour on average for this work, the government and private companies withhold around $40 million a year that they would have to pay if workers had the right to minimum wage. “Some immigrants held at county jails work for free, or are paid with sodas or candy bars, while also providing services like meal preparation for other government institutions,” reports the Times.
And the numbers could be even higher: one political scientist notes that the industry underestimates its levels of free and underpaid labor, asserting that a closer analysis shows that every year more than 135,000 people could be involved, doing unpaid labor worth more than $200 million. (Critics note the irony that U.S. government, which forbids hiring undocumented workers, seems to be the largest employer of undocumented workers in the country).
The Constitution’s 13th Amendment abolished slavery and involuntary servitude “except as a punishment for crime.” Scholars such as Michelle Alexander note that this slavery-loophole resulted in Jim Crow-era practices that ensured a continued supply of free labor by criminalizing people of color. The iconic image of this is the chain gang.
But people held in ICE detention facilities aren’t convicted of crimes. These are civil detainees placed in holding centers, awaiting hearings to determine whether they are here illegally — or whether they are asylum seekers, permanent residents, or even U.S. citizens whose documentation came under question by authorities. This legal distinction should exclude them from the 13th Amendment’s loophole.
The compensation rule that pays them $1 a day was established in 1950 under the federal Voluntary Work Program. Congress last looked at the rate in 1979, and decided it didn’t need to be raised (even though the equivalent of a 1950 dollar is near $10 today). A 1990 lawsuit challenged that number under the Fair Labor Standards Act, but an appellate court upheld it, finding that “alien detainees are not government ‘employees.’”
By targeting the Trafficking Victims Protection Act and targeting immigrant detainees in private prisons, labor lawyers may have found the legal ‘loose brick’ of prison-labor policies.
Last year, tens of thousands of U.S. inmates waged a nationwide prison strike, with the aim to “end legalized slavery inside American correctional facilities.” The latest moves of the Aurora case indicates one region where civil law may work toward protecting the rights of immigrants and workers who are locked up. Plaintiff-side attorneys who can think creatively about labor law in the age of Prison Inc. may find themselves playing an important role in this historical moment.