What Happens When Prisoners Go on Strike? (ep. 15)

September 27, 2018
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More than 2,000 firefighters battling the blaze in California this summer came from inside the state’s prison system. They were part of a national workforce of incarcerated people, paid pennies per hour and sometimes nothing at all, for hourly labor benefiting the U.S. economy. Driven in part by demands for better working conditions and wages, incarcerated workers last month began a nationwide prison strike. David Fathi, a longtime prison rights advocate and director of the ACLU National Prison Project, discusses the strike and the organizers’ demands.

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LEE ROWLAND
[00:00:02] I'm Lee Rowland. Welcome to At Liberty, the podcast from the ACLU where we grapple with today's most pressing civil rights and civil liberties questions. Today, a nationwide prison strike.

As wildfires raged in California this summer, over 2000 of the firefighters on site were paid just one dollar per hour to battle the blaze. These firefighters were volunteers from inside of California's prison system. They're part of a national workforce of incarcerated people paid pennies per hour and sometimes nothing at all for hourly labor benefiting the U.S. economy. Driven in part by demands for better working conditions and wages, incarcerated workers last month began a nationwide prison strike. Today we're speaking with David Fathi, director of the ACLU’s National Prison Project, to learn more about the strike and the organizers’ demands. David is a longtime prison rights advocate who has spent his career fighting for incarcerated people and against the policies that have given the U.S. the highest incarceration rate in the entire world. We'll get his thoughts on what the nationwide prison strike reveals about America's prison culture. David, thank you so much for being with us today.

DAVID FATHI
Thank you for having me.

LEE
Let's start with a basic primer on this summer's prison strike. What is it and why did it begin?

DAVID
The nationwide prison strike came about because of a level of dissatisfaction on the part of prisoners with the conditions under which they live. The United States has the world's largest prison population — two point three million people behind bars at any given time — and the conditions under which many of them live are frankly appalling — conditions that are unhealthy, dangerous and sometimes even lethal. So the prison strike came out as a result of this dissatisfaction really coming to a head and some prisoner activists deciding that the time had come to make a stand.

LEE
[00:02:16] Who were these prisoner activists? And did they have a specific list of demands when they went on strike?

DAVID
We don't know who many of them are. And that's because prisoners take tremendous risks when they engage in this kind of peaceful protest. It's perfectly legal for you or me to participate in a sit in or a work stoppage. For prisoners, it can result in solitary confinement, other kinds of discipline and even a lengthening of their prison time. So some of the organizers, quite understandably, chose to remain anonymous. In terms of demands, there is a list of 10 demands that the strike is dedicated to, ranging from improvement in living conditions to the right to vote. In all but two states convicted prisoners are deprived of the right to vote. And the prison strikers are demanding the right to vote for all citizens, including incarcerated people.

LEE
So you said prisoners take risks in engaging in strike behavior. How do we know that a strike went on at all? How do we have information from what's going on inside prison walls?

DAVID
Well our information is very fragmentary because prisons are the most closed institutions in the United States. Prison administrators control access. They control information. And we know very little about what goes on inside our prisons and jails. But we do know that prison officials in a number of states have confirmed strike activity in their prisons. There are credible reports of strike activity in a number of additional states. So, while we don't know precise numbers, we do know that this was a very impressive level of coordination leading to strike action in a number of states during the nationwide prison strike.

LEE
What about media access? Does the media have the right to go into prisons and ask about strike activity? And have they?

DAVID
[00:04:20] Media have the right to ask, but they don't have the right to get answers. Media have no more right than anyone else to to enter a prison, to interview prisoners. And unfortunately the courts have upheld some pretty strict limitations on media access to even prisoners who want to speak with the media. So, for example, the courts have said that a prison can ban in-person media interviews with prisoners — even prisoners who who want to be interviewed.

The problem has at least a couple of levels. One level is that most people just don't care much about prisons and prisoners. These are people who come overwhelmingly from the poorest strata of society. They’re politically unpopular because of the fact that they've been convicted of crimes. So a lot of people — unfortunately including a lot of journalists — just don't care much or pay much attention to the situation of prisoners. The second level of the problem, though, and at least equally disturbing is the fact that even journalists who want to cover these issues, who want very much to find out what's going on in our prisons, are regularly stymied and obstructed from getting that information — even very basic information — by prison officials, many of whom try to keep the media out of their prisons at all costs.

LEE
David can you tell us about the basic mechanics of how a prison strike works? How do prisoners communicate with each other, given the difficulty of communication inside a prison, and how did they know what to do to participate in the strike?

DAVID
Prisoners’ communications are extremely limited. Prisoners don't have access to the internet. Their access to telephones is extremely restricted. And all of their phone calls, except to attorneys, are recorded by the prison. Prisoners can write letters. But in many prison systems they're not allowed to write letters to other prisoners. So you can see that the ability of prisoners to coordinate among themselves and to organize anything is significantly restricted. And so when you have a strike that involves numerous prisoners at different prisons in multiple states, that is an astonishing achievement given these very significant restrictions on their communications.

LEE
[00:06:44] Do we know from prison officials what the strike consisted of in different institutions?

DAVID
Prison officials in Nevada and North Carolina did acknowledge some strike activity in their prison systems. I believe in both cases it consisted of prisoners refusing their meals — essentially engaging in a hunger strike, which is one of the forms of protest that strike organizers called for. But again, we don't know how many prisoners in how many prisons and how many states may have engaged in similar activities, because unless prison officials affirmatively tell us, it's very difficult to get that information.

LEE
I'd like to ask you about the kinds of labor that go on in prisons or by incarcerated people. One of the ways in which prison labor has in fact risen to the headlines lately was during the summer when there were volunteer firefighters, as part of the force battling wildfires in California, from California's prison system. Is is that common for incarcerated people to do such dangerous work?

DAVID
I think the prison firefighters in California captured public attention in part because it's so unusual to have prisoners doing that kind of work outside the prison perimeter, running around with axes and chainsaws, which really raises the question of why they needed to be in prison in the first place. Most prison jobs are much more mundane. Most of them take place inside the prison and really consist of helping the prison run. So prisoners might have a job sweeping the cellblock where they live. They might have a job cooking food or helping to serve food to their fellow prisoners. They might have a job working in the prison laundry. And these jobs typically pay even less than the one dollar an hour that the prisoner firefighters make. In a number of states prisoners make nothing at all for their work. They're required to work and if they don't they are punished. But they're not paid for their work. In other states they may make 10 cents, 12 cents, 15 cents an hour — which makes the dollar an hour paid to the California firefighters seem almost generous.

LEE
[00:09:09] You mentioned some of these jobs are both required and unpaid. That's not usually a combination of adjectives that we permit in a free society. I was looking at some of the prison strike organizers’ demands and many of them speak in terms of “ending prison slavery.” How is it possible — particularly given the Constitution and the 13th Amendment, which bans slavery — for the state to require people to work for free?

DAVID
Well most people know that, as you say, the 13th Amendment outlawed slavery and involuntary servitude. But what many people don't know is that it basically provides an exception for people who have been convicted of a crime. So, convicted prisoners can be required to work, they can be punished if they refuse to work, and they don't have to be paid. So that is the sort of legal black hole in which prisoner laborers, exist. They don't enjoy the protection of the 13th Amendment that all the rest of us have since 1865.

LEE
Are there limits on the state's power to require people to work for free? I mean could the state pick someone up and throw them into the middle of a volcano and say take care of it?

DAVID
The Eighth Amendment to the Constitution, which prohibits cruel and unusual punishment, does put some limits on what prisoners can be required to do. So prisoners can't be required to do work that's unreasonably dangerous — exposure, exposure to risk of injury, toxic chemicals, things like that. But those limits don't have a lot of effect in the real world, and you will find prisoners doing all kinds of dangerous work. Certainly fighting wildfires is extremely dangerous. Six firefighters have been killed in California this year alone fighting wildfires, and two of them prisoners. And prisoners have been killed fighting wildfires in other states as well. So there are limitations in theory but in fact there are relatively few.

LEE
[00:11:23] Why on earth would the drafters of this constitutional amendment include an exception to the very practice of slavery they were purporting to end with the 13th Amendment?

DAVID
I don't know the history of how that exception got inserted into the 13th Amendment. I can tell you that the presence of that exception allowed slavery to be essentially replicated by another name. Shortly after the 13th Amendment was enacted and slavery was formally abolished, the Southern slaveholders, or former slaveholders, realized that they could still have uncompensated labor as long as they used convicted prisoners. And so the newly freed black population was arrested and imprisoned en masse and then required to work at the very same jobs that they had worked at in the past as slaves. One of the most influential books about this topic is actually titled Slavery by Another Name. Another one is called Worse Than Slavery. So it immediately became clear that this exception was an exception that threatened to swallow the rule. And while we certainly don't have the horrors of the convict convict lease system that we had in the late 19th and early 20th centuries, the fact that people can still be required to work for no compensation against their will is deeply problematic and it is to the point where even the American Correctional Association, which is the voice of the people who run our prisons, has said that that exception should be repealed. They don't want their profession of corrections being associated in any way with slavery or involuntary servitude. And so at their 2016 convention they actually passed a resolution calling for the repeal of the 13th Amendment's exclusion clause

LEE
[00:13:12] Who is benefiting from the unpaid labor being done by incarcerated people?

DAVID
Well in a sense all of us are benefiting because without the unpaid or virtually unpaid labor of prisoners, prisons would be much more expensive to run. Incarceration is already extremely expensive. The cost of locking up a prisoner ranges from 20 thousand dollars a year to 60 or 70 thousand dollars a year depending on the state. But without the unpaid and very poorly paid labor of prisoners that would be much more expensive still. So prison labor allows us to maintain this system of mass incarceration at an artificially low price and that is a very dangerous thing because it prevents us from paying the true price of this policy decision that we as a society have made to lock up two point three million people.

LEE
David can you give us some examples of some of the services or products that prisoners are making that the state would otherwise have to pay for if not for that captive labor force.

DAVID
Well most of the prison jobs that I'm familiar with have to do with simply the day to day operation of the prison: All of these things the government would have to pay workers at least the minimum wage, but for the unpaid labor of prisoners. So the availability of that prison labor dramatically decreases the cost of incarceration and creates if not an incentive at least a reduced disincentive to maintain the bloated prison population that we have.

LEE
[00:15:12] It's my understanding that the prison strike has concluded. Is that correct?

DAVID
I have heard conflicting things about that. The strike was scheduled to conclude on September 9th which was the... that date was chosen because it is the anniversary of the Attica prison uprising in New York in 1971. But I have heard that, at some prisons, prisoners are continuing strike activity — whether it's refusing their meals, refusing to work. Again it's difficult to get reliable information about what's happening in our prisons. But there are some reports that at least in some places the strike continues.

LEE
What happened at Attica?

DAVID
Attica was, and still is, a prison in upstate New York. It was, as many prisons at the time, grotesquely overcrowded. The population was majority black and brown people overseen by a staff that was overwhelmingly white. Brutality and racism were endemic, and eventually on September 9th, 1971, the prisoners took control of the prison and tried to negotiate with the government over their demands which were, like the demands of the 2018 prison strike, very basic: an end to racial discrimination, decent living conditions, meaningful compensation for work. Unfortunately, after four days the rebellion was crushed in a massive attack by state police National Guard and corrections officers and 43 people were killed, almost all of them during the retaking of the prison. The good news — if you can call it that — is that Attica really put the issue of prisoners rights on the map, and it was just a few months later that the ACLU formed the National Prison Project to defend and protect the rights of prisoners. So we really think of Attica as the… marking the beginning of the modern prisoners rights movement.

LEE
[00:17:24] It sounds, it sounds like even though it was a tragedy, Attica did lead to increased visibility. Do prison strikes and prison organizing in general tend to produce change inside the system?

DAVID
I think organizing and activism by prisoners is a critically important part of prison reform. Again, this is a part of our society that very few people know much about or care much about. And that's not their fault, because this information is kept from them. So when there is a strike or certainly when there's an event like Attica, it makes people think about prisons, which is something they don't normally think about. It makes them, maybe, wonder: Why do we have the largest prison population in the entire world? Why is a Black man six times more likely than a white man to go to prison? And to the extent that people start asking those questions that can only be a helpful development when it comes to reforming our criminal justice system and our prison system.

LEE
Big picture, would you say that prison conditions in America have improved since the Attica uprising in 1971?

DAVID
That's a complicated question. There's no doubt that in some ways prison conditions have improved tremendously. It's now completely settled law that prisoners have a right to healthcare — medical care, mental healthcare, dental care — that meets community standards. And that was something that would have been unthinkable a few decades ago. Prison rape used to be something you joked about. Now Congress has passed a law to end prison rape and prisons have to show that they're taking serious efforts to end sexual assault or lose part of their federal funding. So, in many respects, things have gotten better. The main way in which things have gotten worse is the explosive growth of the incarcerated population in this country. At the time of Attica we had between two and three hundred thousand prisoners in this country, we now have 2.3 million. So the number of people who are being affected by, damaged by our dysfunctional prison system has increased exponentially since Attica and that is certainly a very negative development.

LEE
[00:19:57] You've been a prison reform advocate for many years. Looking at the system as a whole, what would you say are currently the worst problems that plague today's prisons?

DAVID
Well, the big problem underlying all others is the scale of incarceration. We have single prisons in this country that hold five or six or seven thousand prisoners. That's larger than the entire prison population of many countries. And it's just impossible to run a safe and humane and rehabilitative prison when you have 7,000 prisoners in a single institution. Another issue is is the aging prison population. Given the brutally long sentences in this country, we have a prison population that is getting steadily older. All else being equal, older people have more and more complex healthcare needs. And so we're seeing more and more geriatric prisoners with serious medical needs that simply aren't being met.

LEE
[00:21:03] Of these problems you've listed, do you think of any of them as uniquely American problems?

DAVID
I don't think they're uniquely American in a qualitative sense. They are uniquely American in their scale. The incarceration rate in the United States is five to ten times higher than in Canada, Great Britain, France — all of the countries that we think of as our peer nations. Another thing that's pretty much uniquely American is the complete lack of oversight over our prison system. Most other democracies — Canada, Great Britain, France — have an independent monitoring body that has 24-hour access to all the prisons in the country, goes in, makes inspections, and publishes their results. We don't have that in this country. Prisons are black boxes. Prisons are closed environments. And when you take a politically unpopular, powerless, despised minority and you combine that with a complete lack or almost complete lack of outside oversight and scrutiny, that is a recipe for neglect and abuse. And that is what happens in all too many U.S. prisons.

LEE
What should be the goal of incarceration?

DAVID
Incarceration should make people better, not worse. Incarceration should address the problems that led the person to offend in the first place. It should provide the person with skills both job skills and interpersonal skills — that will serve him or her in the future, and it should prepare the person to be a law abiding, productive citizen upon release. Unfortunately, our prisons do a terrible job on all of those fronts, and prisons in the majority of cases make people worse rather than better.

LEE
[00:23:12] Are there other countries that are doing a better job of treatment and rehabilitation in their systems?

DAVID
There are. If I can say, the best prison systems in the world are generally recognized to be those of western and northern Europe: Sweden, Norway, Denmark, Germany. And what they all have in common is a couple of things. One, a much lower incarceration rate. They use prison as a last resort rather than a default response to anti-social behavior. And they invest in prison. They take the idea of corrections seriously. They don't warehouse people. They really do make an attempt to rehabilitate them and make them better when they leave than they were when they came in. Are they always successful? Of course not. But they're successful a lot more often than we are in this country. And part of that, much of that, comes down to investment and training. To be a prison officer in Germany, you have to train for two years. In this country, depending on the state, you might get three or four weeks of training. And that makes all the difference.

LEE
The United States incarcerates more people per capita than anywhere else in the world. And it sounds like you think we do that job of incarceration particularly badly. That is, we're taking a significant chunk of our population and we're putting them somewhere with no obvious upshot for the rest of us. And it's expensive to boot. What do you think that combination of both high scale and low quality says about Americans relationship to punishment and forgiveness?

DAVID
[00:25:02] I think that's an interesting question: What it says about our national character, what it says about the way we think about lawbreaking, deviant behavior, anti-social behavior. And one of the differences with many European prison systems is they never stop thinking of the prisoner as a citizen. They never stop thinking of the prisoner as a member of society who is going to return to society and is going to be your neighbor at some point in the future. In the United States it seems that once someone is convicted of a crime we simply cast them outside of the human family and we dehumanize them with terms like “inmate” and “offender” and we give very little thought to their return and reentry into society. And the results are predictable.

LEE
And in addition to being predictable, how racial are those results in today's America?

DAVID
Well, the United States is a segregated, racially discriminatory, racist society. And nowhere is that more starkly visible than, than in our prisons. A Black man has six times higher chance of incarceration than a white man. If you look specifically at young men, the ratio is even higher. If you look at young men, a Black young man is 11 or 12 times more likely to be incarcerated than a young white man. And it's striking, you walk into prisons in areas that don't have a large Black or brown population, and you see that among the prisoners, virtually all of them are Black and brown. So it really is certainly not the only institution where we see racial discrimination, racial stratification. But it's perhaps the institution where it is the most extreme and the most stark and the most obvious.

LEE
For listeners who may find themselves surprised to be learning that there was a nationwide prison strike this summer: Is there anything that the average person can do to find out more about what's happening inside of America's prisons and to advocate for prison reform?

DAVID
Well the good news is that unlike, say, in the 1990s, this is a time when there is a lot of awareness, more awareness than there used to be about the problems in our criminal justice system. There's a growing consensus that we lock up too many people in this society, that the racial disparities in the criminal justice system are simply intolerable, and there are a number of organizations that are doing important work to change that. Certainly including the ACLU, but but not limited to the ACLU. So I think someone who wanted to do something about this should should become active in one of those organizations.

LEE
Thank you so much for talking with us today, David.

DAVID
My pleasure, thank you.

LEE
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