Rights and Duties of Prisoners for Prison Labour - Essay Example

Running Head: Rights and Duties of Prisoners for Prison Labour Rights and Duties of Prisoners for Prison Labour of Institution] Rights and Duties of Prisoners for Prison Labour Prison Labour Introduction The population of the prisons is constantly multiplying. There has been a fivefold rise as compared with the statistics in 70s. This growth is creating an increasing encumbrance of tax and considerable warehousing opportunity cost around 2million prisoners. Providing work to inactive prisoners within secured boundaries has become a new focus of government policies for the purpose of not only compensating the incurred everyday expenditure, but for maximizing the utilization of human resource in addition to augment the national output. There has been a debate for centuries over the issue of imprisonment labour effects upon both prison and non-prison employment. Such effects are based on only subjective confirmation. Supporters of prison labour publicize its communal advantages through minimized prison's expenses, better performance among the inmates, probable decline in inmate violence, and corrective remedy by means of social skills development. Whereas antagonists raise the objection that prison labour creates joblessness and decline in sales in the outer world.1 Significance of Prison Labor As stated by Buck2 labour is said to be a fundamental element within prison's affairs. It is considered as a source of not only the reprimand but a corrective measure also, it is being perceived as a straitlaced compulsion and a rehabilitation attempt as well. According to Focault3, prison labour aims to create a legitimate power relation, a notion of submission on the part of inmates and a corrective and constructive mechanism. Focault marks down the value of profit as a work stimulus, though, during the period of escalating industrialized development, the amounts of profits are great. As incarceration work is based on the dynamic of compliance to authority and dominance, thus it always has a threat of revolt and aggression, that is, to respond ethically and morally in debauched circumstances full of oppression and humiliation. Forced labour seems to be morally wrong although being validated for centuries by the church as a corrective mode. Efficiency and labour may not be parallel at times. Labour is a calculated product for organizing pursuit of mankind apparently to have profit, but may be different for others who claim to have all sources of production like human resource, minerals, land etc. They inscribe it through an ethical angle for the development of improved lifestyle such as stability, compliance and passivity. Labour, if viewed as a planned and quantifiable object, seems to be a manipulation of human resource and an inspiration for producing worth. Mental labour is also probable to be apprehended by those making payments to scientists and educators, or giving salaries to technical employees.4 Rights of Prisoners for Prison labour Prisons are not meant to be particularly hospitable places, punishment as a goal of imprisonment implies a certain level of discomfort. Since the establishment of punishment by incarceration, prison conditions have had notably harsh effects upon the human body and mind.5 As stated by Johnston6 although conditions have varied over time and between institutions, reformers have constantly voiced concerns over the treatment of prisoners. Approximately four decades ago, federal courts began responding to complaints of inhumane treatment by applying the Constitutional Eighth Amendment prohibition against brutal and extraordinary punishment to demarcate a line between conditions of confinement that are uncomfortable and those which are unconstitutional.7 Along with the expansions of civil rights for inmates, courts mandated the costly reorganization of prisons. The prisons, once characterized by local autonomy and self-rule, were transformed into modern bureaucratic institutions designed to protect prisoners' newly acquired rights.8 International Standards of Prisoners' Rights for Prison Labour 1. Instruments of United Nations The first international definition of slavery can be found in the "League of Nations Slavery Convention of 1926. It is 'the status or condition of a person over whom any or all of the power attaching to the right of ownership are exercised'.9 Article 2 provides that the High Contracting Parties must undertake to bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms.10 After World War II, the Universal Declaration of Human Rights reaffirmed the principle that "no one shall be held in slavery or servitude".11 It also affirmed that "everyone has the right to work, to free choice of employment, to just and favourable conditions of work" and to protection against unemployment.12 The International Covenant on Economic, Social, and Cultural Rights also provided the recognition of the right to work, which includes "the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts", and prescribed that the states "take appropriate steps to safe guard this right".13 The International Covenant on Civil and Political Rights specifically reaffirms the principle of the prohibition of forced or compulsory labour.14However, article 8(3)(c)(i) excludes from the definition of forced labour "any work or service normally required of a person who under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention". 15 The Covenant does not address the role of private contractors with regard to prison labour.16 The Standard Minimum Rules for the Treatment of Prisoners were adopted on August 30, 1955 by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977 in 1930.17Although they are not binding, they provide guidance on minimal international standards concerning prison labour. They state that "all prisoners shall be required to work, subject to their physical and mental fitness".18They focus on the purpose of rehabilitation, 19 providing that "the organization and methods of work in the institutions shall resemble as closely as possible those of similar work outside institutions",20 and that "the interest of the prisoners and of their vocational training, however, must not be subordinated to the purpose of making financial profit from an industry in the institution".21 Finally, rule 73(1) provides that "preferably institutional industries and farms should not be operated directly by the administration and not by private actors.22 The Standard Minimum Rules also provide for public supervision of prison labour, stating that "where prisoners are employed in work not controlled by the administration, they all always be under the institution's personnel".23Finally, concerning wages, they provide that "there shall be a system of equitable remuneration of the work of prisoners".24 2. International Labour Organization Conventions on Forced Labour The Forced Labour Convention, 1930 (No. 29) The essential international instruments concerning prison labour are the International Labour Organization's (ILO) two conventions on forced or compulsory labour. They are among the most highly ratified ILO conventions.25In September 2004, the Forced Labour convention, 1930 (No. 29) was ratified by 163 countries with the notable exceptions of China and United States and the Abolitionof Forced Labour Convention, 1957(No. 105) was ratified by 161 countries. Definition of Forced Labour Article 1(1) of the forced Labour Convention No. 29 requires each Member "to suppress the use of forced or compulsory labour in all its forms."26 Article 2(1) defines forced labour as "all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily." Thus, forced labour exists when the person has not chosen freely to work or when the person is subject to sanctions if they refuse to work.27 These need not be in the form of penal sanctions, but can also take the form of any loss of rights or privileges. In addition, it must be noted that payment for the work does not mean that the work is not forced labour.28 Different forms of forced labour exist in the world today. In 2001, the Director-General presented a report to the international Labour Conference entitled "Stopping Forced Labour", a second global report under the Follow-up to the ILO Declaration on Fundamental Principles and Rights at work.29 Voluntariness The committee of Experts recognizes that voluntary prison labour is possible. Thus, the question of the legality of prison labour for private enterprises does not arise in the case where prisoners are given a genuine option to choose to work or not. However, in order to demonstrate the 'voluntariness', two conditions must be met. First, the formal consent of the prisoner concerned is an important criterion. Second, the work conditions and circumstances must approximate a free employment relationship.30 It must be noted that these questions of free consent and conditions approximating a free relationship are only relevant when private entities are involved in the prison labour. Free consent to work Due to their captive circumstances, it is difficult to determine whether prisoners have offered free consent to work. "Prison labour is captive labour in the full sense of the term, namely, it has no access in law and in practice to employment other than under the conditions set unilaterally by the prison administration"31 nevertheless, if there are detrimental consequences because of the failure to undertake work, the work is not considered voluntary. "The option to perform work must be a true option and not one in which the alternative to the provision of work is a detriment"32 The detriments can include loss of rights, advantages or privileges or aggravation of detention conditions. If employment activities are taken into account in determining a prisoner's good behavior, which is a criterion for reduction of sentence, the work performed by the prisoners is considered "work or service exacted under the menace of penalty" within the meaning of Forced Labour Convention No. 29. The Abolition of Forced Labour Convention, 1957 (No. 105) does not revise the Forced Labour Convention. 1930 (No. 29), but in fact supplements it.33 While the forced Labour Convention No.29 prescribes the suppression of the use of forced or compulsory labour. 3. 3. Regional Standards of Prisoners' Rights for Prison Labour European Government Instruments At the regional level, the 1950 European Convention on Human Rights also prohibits forced labour. Article 4(2) provides that "" no one shall be required to perform forced or compulsory labour."34 Article 4(2)(a) excludes from the definition of forced labour "any work required to be done in the ordinary course of detention imposed according to the provisions of Arcticle 5 of this convention or during conditional release from such detention"35 the convention does not define what is meant by forced or compulsory labour, and "no guidance on this point is to be found in the various council of Europe documents rlating to the preparatory work of the European Convention." the European Court of Human Rights has referred to the definition from article 2(1) of ILO forced Labour convention No.2936 Furthermore, the European Prison Rules, although they are a non-binding instrument, are an important tool for interpretation by international and national courts. They follow the United Nations standard Minimum Rules, but also provide additional protection. Rule 71(1) provides that prisoners under sentence may be required to work.37 Rule 72(2), however, provides that the interests of the prisoners and their treatment must not be subordinated to the pursuit of financial profit from industries.38 Finally, the European Social Charter provides at article 1(2) that the Contracting Parties undertake "to protect effectively the right of the worker to earn his living in an occupation freely entered upon"39 Duties of Prisoners of Prisoners' Rights for Prison Labour Robinson40 presents solid reasons to establish the importance of prison labour. The volume begins with a series of well-known answers to the important question that forms the title of the work. "Should Prisoners Work" Most assuredly because: There is some curative power in good honest work, through it body and mind may be cleansed of impurities and habits may be established which will prove useful on release. Conversely, under idleness, the health of prisoners declines and in a large proportion of cases the mind, burdened by the monotony of the slowly passing hours in which neither hand nor brain is active, becomes affected. A criminal turned out of prison a more demoralized character than when he entered is rather certain to revert to crime. Thus the whole social action of arrest, trial, and punishment is frustrated, for its plain purpose is to hinder, not to foster, crime. Work is indispensable to maintaining the discipline and morale of an institution. The burden of supporting the prisoner's family should not be borne entirely by others. He ought to contribute to their maintenance, not only because it is a continuing duty but because the economic bonds of family life are often all-important in keeping men upright. It is just and proper that criminals should make restitution as nearly as possible. The state is entitled to some contribution toward the cost of maintaining prisoners. Only on the ground that some state purpose will be served, can the maintenance at the state's expense of a non-working prison population be justified. Professor Robinson41 rightly points out that: Even though it may be extremely difficult to put prison industries on a paying basis financially, they should always be set up as a part of a sane penology program. . . . To make bricks without straw is easy compared with the task of making decent citizens out of criminals without work. (P. 289) Thompson42 states that the historical divisions between the proponents of prison work experience as a place to prepare people for a more positive life on release and those that saw it as an appropriate way to pass time at best and be punished at worst, have placed a discursive boundary around the field which limited the way that projects in prison could be described. They were either a good way for prisoners to spend their sentence or a rehearsal for skills to be used in the future. Preparing Prisoners to Work In order to improve the corrections system of the prisons, all inmates who are physically able must have opportunities to work. When prisoners work, the nation's prisons become safer places that can truly be rehabilitative environments. Inmates who have jobs are not idle and therefore have less time and energy to devote to mischief. They also learn to handle responsibilities, acquire job skills, and contribute to society in productive ways.43 The prisons provide a large source of labour, mostly young and male, that should not go untapped. We lose the productivity of these potential workers when they are incarcerated and do not work. As the prison population grows, more able-bodied people lose the opportunity to contribute to American productivity. We should seek to make use of this labor pool, and we can help facilitate the reentry of inmates into society by providing them with job skills. We should not allow a prison sentence to serve as a blessing of unproductive behavior.44 Types of Duties Available for Prisoners Employment of Prisoners during Imprisonment Even though prisoners have been removed from society to serve their sentences as punishment, state prison systems vary widely on the degree to which they have jobs available for prisoners while imprisoned. While some jails report that all ''work capable'' inmates are required to have a job Comparing Prisoner Jobs and Workplace Deviance in the prison or at least be enrolled in school full time45. Essentially, there are three types of labor that comprise jobs inside most prisons: Factory Jobs Institutional Maintenance Jobs Agricultural/ Field Work Prison Industry As stated by Alarid46 and Kalinich47of all three types of prison labour, prison industry is considered the most desirable by inmates because wages are the highest and the type of work is more applicable to getting employment after release than with other types of prison jobs. However, prison industry jobs or the jobs that offer the best wages are more prevalent in men's prisons than in women's prisons, so there is a gender difference in opportunities. The Federal Bureau of Prisons has industry/factory jobs available that include a variety of different product lines that are used solely by the government or purchased by government entities. Lines of work include textile factories that consist of prisoners who sew correctional officer and prisoner uniforms, manufacturing vehicle license plates, street signs, furniture, fabric, and other prison goods such as lunch trays and plastic ware.48,49 A second type of industry is private companies with name brand clothing and other products that reach an agreement to manufacture their product line using prisoner labor. Private sector companies must pay inmates a rate comparable to what they would have paid someone else in the same locality, and in turn the inmate's wages are deducted for room and board to offset the cost of incarceration, federal, and state taxes, family support deductions, and victim restitution if applicable. Prison-based private sector jobs also cannot result in displacement or loss of jobs to free-world workers.50, 51 While the private sector is growing inside prisons, prison-based work in data entry, assembly, telemarketing, metal fabrication, and garment manufacturing involves a small number of inmates nationwide. A national average of 7.8% of inmates is employed in either factories that produce goods solely for the federal government, or private sector jobs that produce goods for the outside society.52 Institutional Maintenance The largest proportion of inmates is assigned to institutional maintenance jobs to keep the prison clean and running smoothly. Most of these jobs involved clerical and domestic skills like food services, janitorial, and laundry. Some of the more desirable maintenance jobs include those that allow for more freedom around the institution such as barber, elevator operator, porter, stock clerk, and vehicle operator.53 Prison Farm Work Agricultural jobs such as growing crops and raising livestock on acres of state-owned land remain prevalent today. The work is labor-intensive outdoor work that uses Comparing Prisoner Jobs and Workplace Deviance hand-held tools (aggie, shovels, and hoes) to tend the ground for planting, weed control, and harvest. This type of work is used for inmates with disciplinary problems and therefore is ranked by other prisoners as one of the least desirable jobs.54 Based on the available information, it was concluded that most jobs available to prisoners while incarcerated lack autonomy and freedom and can therefore be classified as ''strong-grid'' jobs.55 Most previous research on prison labour has examined the advantages and disadvantages of prison work programs. The advantages of prison labor include cost reduction or reducing the strain on government budgets, reduction of prisoner idleness, establishing good work habits, creating a sense of independence and self-respect, and some prisoners were able to learn meaningful vocational skills.56, 57 & 58 The issue of paying prisoners for their work allowed prisoners to have some savings for release, support their families, pay victim restitution, and pay taxes to the government. The principal disadvantage of prisoner labor is that security issues take precedence over a normal workday. There are counts, lockdowns, and institutional transfers that disrupt productivity. Jobs are arguably linked to controlling prisoner behavior more so than they are to any real form of rehabilitation.59 Most prisons have more prisoners than jobs, so there is a tendency to over-assign too many workers to complete a job. This may result in idleness and low productivity levels. One study estimated that, on average, every working prisoner produced less than 25% of the work of one worker in the free economy outside prison.60 Part of the productivity problem originated from prisoners working in unskilled jobs, with outdated equipment, or those who performed labor for which there was no equivalent upon release, such as prisoners who manufactured road signs and license plates.61 , 62 (Flanagan 1989; Hawkins 1983). A final disadvantage is cost associated with pilfered goods and services by prisoners. In every prison in America, prisoners working inside the prison results in a certain amount of loss incurred for ''employee deviance,'' in such activities as sabotage, theft, and failure to work (Tucker 1999:2). This cost is estimated to be significant, but there is currently no published information available. This research focuses on workplace deviance, specifically prisoners who use their jobs for profit while incarcerated. Conclusion Many jobs performed by inmates are linked to controlling their behavior and disciplinary record more than as a model of rehabilitation and a link to the outside world. Carlson (2001) suggested that where possible, prisoners should be able to apply for a work assignment, as some choice results in higher compliance and less deviance. Perhaps if more prisons paid prisoners comparable wages and, in turn, deducted room and board, taxes, and restitution from each paycheck, this may change the meaning of work for prisoners, the economic situation of some prisoners, and thus the prevalence of deviance in the informal prisoner economy. Others disagree with this, saying that attempting to normalize pay and deductions for monthly living costs leads to costly administrative fees and accounting practices to keep track of what each prisoner owes. The amount of money lost to prisoner workplace deviance each year was not available. (Carlson, 2007) Given the results of this research, it is assumed that the amount lost by using prisoner labour continues to outweigh the cost of hiring citizens from the outside to perform the jobs prisoners do now. References Alarid, L. F. (2003). ''A Gender Comparison of Prisoner Selection for Job Assignments While Incarcerated'', Journal of Crime and Justice, Vol. 26, Issue 1, p. 95-116 Article 5 of the European Convention guarantees the right to liberty and security of person. See Ibid. article 4 and 5 Brass, T., Linden, M., & Lucassen, J. (1993) Free and Unfree Labour, International Institute for Social History Buck, M. (2004) "Women in Prison and Work", Feminist Studies; Summer2004, Vol. 30 Issue 2, p. 451-455 Camp, C. G., Camp, G. and May, B. (2003) The Corrections Yearbook: Adult Corrections 2002. Middletown, CT: Criminal Justice Institute, Inc. Carlson, P. (2001) ''Something to Lose: A Balanced and Reality-Based Rationale for Institutional Programming'', Corrections Management Quarterly, Vol. 5, Issue 4, p.25- 31 Carlson, P. M. (2007) Prison and Jail Administration: Practice and Theory, Jones & Bartlett Publishers, p. 218-19 Convention for the Protection of Human rights and Fundamental Freedoms, 4 November 1950, 213 U. N. T. S, 221, Eur. T. S. 5, article 4 Convention to Suppress the Slave Trade and Slavery, 25 September 1926, 60 L. N. T. S. 253 (entered into force 9 March 1927), article 1 Council of Europe, Recommendation No R(87) 3 of the Committee of Ministers to member States on the European Prison Rules, 12 February, 1987, rule 71(2) Derrick, F. W., Scott, C. E. & Hutson, T. (2004) "Prison Labor Effects on the Unskilled Labor Market", American Economist, Vol. 48, Issue. 2; p. 74 European Social Charter, 13 October 1961, 529 U. N. T. S. 89 (entered into force 26 February, 1965) Feeley, M. M. & Rubin, E. L. (1998) Judicial Policy Making and the Modern State, Cambridge University Press Flanagan, T. J. & Maguire, K. D. (1993) "A Full Employment Policy for Prisons in the U.S.: Some Arguments, Estimates, and Implications'', Journal of Criminal Justice, Vol. 21, Issue 2, p.117-30 Forced Labour Convention, Convention (No. 29) Concerning Forced Labour, Retrieved April 18, 2009 from: http://www.unhchr.ch/html/menu3/b/31.htm Foucault, M. (1995) Discipline and Punish: The Birch of Prison, 2d Ed. New York: Vintage, p. 243 "Fundamental rights at work and international labour standards", (2003), By International Labour Office, Published by International Labour Organization, p. 42-3 Greiser, R. C. ( 1989) ''Do Correctional Industries Adversely Impact the Private Sector'', Federal Probation Vol. 53, p.18-24 Guynes, R. & Greiser, R. C. (1986) A Study of Prison Industry: History, Components, Goals, College Park, MD: American Correctional Association. Hawkins, G. (1983) ''Prison Labor and Prison Industries', Pp. 85-127. In Crime and Justice: An Annual Review of Research, vol. 5, edited by Michael Tonry and Norval Morris. Chicago, IL: The University of Chicago Press James, N. (2007) Federal Prison Industries, Retrieved April 17, 2009 from: www.fas.org/sgp/crs/misc/RL32380.pdf Johnston, N. (2009) Prison Reform in Pennsylvania, Retrieved April 18, 2009 from: http://www.prisonsociety.org/about/history.shtml The International Covenant on Civil and Political Rights, 19 December 1966, 999 U. N. T. S. 171 (entered into force 23 March 1976), article 8(3) International Covenant on Economic, Social, and Cultural Rights, 16 December 1966, 993 U. N. T. S. 3 (entered into force 3 January 1976), article 6(1) Kalinich, D. B. (1980) Power, Stability, and Contraband: The Inmate Economy, Prospect Heights, IL: Waveland Kanchana N., Ruwanpura, & Rai, P. 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(1998) "Let the prisoners work", Christianity Today, Vol. 42 Issue 2, p.14 Report ILO 2001 "Report of the Committee of Experts on the Application of Conventions and Recommendations", (2008)(articles 19, 22 and 35 of the Constitution): 3rd item on the agenda: Information and reports on the application of Conventions and Recommendations By International Labour Conference, International Labour Office,Published by International Labour Organization. Robinson, L. N. (1931). Should Prisoners Work A Study of the Prison Labor Problem in the United State, the John C. Winston Company Sexton, G. E. (1995) Work in American Prisons: Joint Ventures with the Private Sector. NCJ 156215, Washington, DC: U.S. Department of Justice, National Institute of Justice. Standard Minimum Rules for the Treatment of Prisoners, ESC Aug, 1955/611, UN ESCOR, 1955, Supp. No. 1, UN Doc. A/CON/611, rule 72(1) [Standard minimum rules] "Stopping Forced Labour: Global Report Under the Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work", International Labour Conference, 89th Session 2001, Report I(B).By International Labour Office, International Labour Office Director-General, Director-General, International Labour Office Thurmond, S. (2002) "Give Prisoners the Opportunity to Work", World & I, Vol. 17 Issue 3, p. 306 Tucker, J. (1999) ''Worker Deviance as Social Control'', Pp. 1-16, In Research in the Sociology of Work, Vol. 8, edited by Ida Harper Simpson and Richard L. Simpson, Stamford, CT: JAI Press, Inc. Universal Declaration of Human rights, GA Res. 217 (III), UN GAR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948), article 4. Read More