Arizona’s use of private prisons does not violate the rights of inmates, a federal appeals court ruled Tuesday.
It also does not amount to slavery, wrote Judge Kenneth Lee for the three-judge panel of the 9th Circuit Court of Appeals, rejecting arguments to the contrary by the state NAACP.
The decision leaves intact the moves by Arizona state lawmakers over the years to increasingly contract with companies that run private prisons in what they argued is a bid to save money.
As of last month, nearly a third of 31,742 male inmates at the Arizona Department of Corrections, Rehabilitation and Reentry are in private facilities. By comparison, the figure was closer to 22% four years earlier.
The NAACP argued private prisons are inferior to state-run prisons because they are motivated by profit, leading them to cut costs, resulting in diminished safety and security and fewer programs and services. The organization also said private prisons have a financial interest to keep inmates longer, which it said they accomplish by manipulating disciplinary proceedings.
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But much of the lawsuit, filed in 2020, is based on the argument that private prisons run afoul of the 13th Amendment, which outlawed slavery. That is based, in part, on the argument that private prisons require inmates to work.
The suit also said the prisons profit from maintaining custody of prisoners, something the NAACP equated to slavery.
Lee said the argument doesn’t hold water, saying the 13th Amendment says its prohibitions do not apply in cases of “punishment for crime whereof the party shall have been duly convicted.”
“The amendment expressly carves out incarceration,” Lee wrote. “Thus, we have held that the 13th Amendment does not forbid prison labor requirements.”
“Of course, incarceration in a private prison does not remotely approximate chattel slavery,” he said.
Lee said that when the 13th Amendment was adopted, the term “slavery” meant not just a system of exploitative labor but also a system of treating people as property that could be bought and sold.
“Convicted prisoners assigned to a private prison have not been relegated to such a position of dehumanizing subordination,” the judge wrote.
“Private prisons do not own prisoners,” he continued. “Nor do they buy or sell prisoners; instead, the state of Arizona determines where prisoners are incarcerated.”
Dianne Post, an attorney for the state NAACP, called that conclusion “disappointing.”
“Once again, they missed the entire point,” she told Capitol Media Services. “When you get more people into your prison, you make more money.”
She said these private companies “bargain for prisoners from another state, or prisoners that are convicted for this or that” knowing that each inmate translates to a certain number of dollars per day.
“To me, that is the same thing as buying and selling people,” Post said. “And doing this for profit is the same thing as slavery.”
She conceded it is “not exactly the same thing as chattel slavery,” with “chattel” being another word for anything that is private property other than real estate.
“But it does not have to be in order to be a violation of the 13th Amendment,” Post said.
Lee, in writing the decision, said there are other flaws in the NAACP’s arguments that private prisons are inferior.
“By statute, private prisons must offer a level and quality of services that are at least functionally equal to those that would be provided by state-run facilities,” he said, quoting state law.
He rejected the claim that private prisons can manipulate the system to keep inmates longer — and continue to get funds — through disciplinary actions.
“Private prisons also cannot discipline prisoners or make decisions influencing prisoners’ sentence credits or release dates,” Lee wrote.
Lee did note that the U.S. Supreme Court has held that an inmate has a “liberty interest” in avoid a prison that “imposes atypical and significant hardship on the inmates in relation to the ordinary incidents of prison life.” But he said that is a high bar to overcome.
For example, he said, courts have concluded such hardships include things like confining prisoners to their cells for 23 hours a day and where there are additional severe limitations on human contact. But Lee said nothing cited in the NAACP lawsuit reaches that level.
“The complaint lacks any allegation that private prisons deprive prisoners of meaningful interpersonal contact or that they confine prisoners to their cells for 23 hours per day — or anything approaching these restrictions,” the judge said.
And, beyond that, Lee said the Constitution does not give prisoners a right to demand placement at their preferred facility.
From uniforms to bed sheets to state flags, U.S. prisons have a long history of profiting from prison labor. The Bureau of Prisons, which houses federal inmates, sells products through its company Unicor. Unicor brought in $528 million in 2021 alone.Similarly, the Texas Department of Criminal Justice sells products through Texas Correctional Industries. TCI brought in roughly $82 million between Sept. 2016 and Jan. 2018.The products made by companies like these are mostly sold to government entities like the military or public schools. Correction officials say the training inmates receive will benefit them when they are released.Unicor specifically says its employees fare 14% better at securing employment than those who don’t participate in the program.But wages are very low, and some states don’t pay their workers at all.”I think it’s extremely troubling that the state is making money on the backs of people who are incarcerated,” said Michele Deitch, executive director of the University of Texas’ Prison and Jail Innovation Lab. “And that’s true, whether it is a profit making enterprise or even just to operate the prisons on a daily basis.”A study by the University of Chicago found 65% of inmates (roughly 800,000 people) report working behind bars, and more than 75% of inmates surveyed said they have been punished for refusing to work.Sam Nathaniel Brown spent 24 years in prison before being released on parole, but Brown’s last job behind bars forced him to the front lines of the COVID-19 pandemic. SEE MORE: Inmates are pushing back against working in US prisons”Before I came out, the last job that I had was a health care facility maintenance worker,” Brown said. “I was one of the first people in the state in a carceral setting to have to disinfect and clean a cell and an office where a staff member and then a prisoner tested positive for COVID-19… so I was terrified for my life.”Brown says when he refused to work, he was threatened with a disciplinary measure that would have made him ineligible for parole for an additional eight years.Along with menial jobs, inmates can also have extremely dangerous jobs, like fighting California wildfires.Jamie Lowe wrote a book chronicling the stories of female inmate firefighters.”They’re on the ground, building the lines around containing the fires, and so they are ripping through the roots, and they’re doing really hard labor,” Lowe said. “That also involves being really close to live flames, and that’s terrifying.”Lowe says the state has come to depend on these incarcerated workers, saying they make up a third of wildland firefighters.And while they have some benefits, like working toward an earlier release and much more relaxed security, they are paid just $5 a day for their work.”They’re out there for fire protection,” Lowe said. “They’re out there for flooding. They’re sandbagging communities. They’re doing hard labor in every extreme seasonal catastrophe. People should be outraged.”In recent years, there has been some major reforms around prison labor.In California, the governor signed a bill to help the formerly incarcerated secure jobs as firefighters after their release by making it easier to erase their criminal record.This past November, four states voted to prohibit slavery and involuntary servitude as punishment for a crime. The change, in theory, will stop the practice of coercing prisoners to work under threat of punishment. Those four states join Colorado, Nebraska and Utah, which already removed the language from their state constitutions.SEE MORE: Employers look beyond criminal records to make up for labor shortage
Howard Fischer is a veteran journalist who has been reporting since 1970 and covering state politics and the Legislature since 1982. Follow him on X, formerly known as Twitter, and Threads at @azcapmedia or email azcapmedia@gmail.com.
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