What I propose is, that as we embark on this massive prison construction program, we try a new approach convert our "warehouses" into factories with fences around them. To do that we must change our thinking and change the reactionary statutes that stand in the way. I believe the American people are ready to do that.
-- Supreme Court Chief Justice Warren Burger, 1981
Arbeit Macht Frei [Work Makes One Free]
------ Inscribed above the entrance to Auschwitz
In 1994 Oregon voters approved the "get tough" voter initiative, Measure 17, which requires prisoners to work in prison factories. Oregon citizens were concerned about the increasing costs of prisons and by the distorted media image they had of prisoners lounging in elegant surroundings, watching color TV's and "pumping iron" with free room, board and medical care.
Measure 17 sought to alter the Oregon Constitution, and though the measure itself was fairly lengthy, at the polling booth it was succinctly worded:
QUESTION. Shall constitution require state prison inmates to work or train 40 hours per week, (and) allow public (and) private sectors to use inmate work?
In the media coverage before polling day, voters were sold on another key component of this proposed amendment to the State Constitution: Not only would prisoners be required to work, but they wouldn't be paid. Not a cent. Measure 17 provided that any pay to prisoner workers would be taken and used to finance prison costs, restitution to victims, family support, fines, court costs, and taxes.
Measure 17 passed with a 71 percent majority and its provisions went into effect on April 1, 1995.
'Populist' Ideology Runs Aground on Reality
Serious flaws in the measure soon became apparent.
But if the measure's grand concepts resonated with Oregon voters, those same ideas turned Oregon's prison system on its head. Serious flaws in the measure soon became apparent as the Oregon Department of Corrections (ODOC) found itself unable to comply with its new constitutional mandate.
"This is a huge issue for us," said Corrections Department spokesperson Nancy DeSouza. "The DOC wants to comply with the voters' mandate to put inmates to work --- we believe that's good correctional policy --- but we have run into some very serious challenges trying to implement this mandate."
One problem was that Measure 17 failed to include a specific time frame, implying that full compliance was expected immediately. And if compliance is measured by the percentage of prisoners who spend a full 40 hours a week in qualifying work and training activities, then the Department of Corrections indeed faced a monumental challenge. By December 1996, twenty months after the new constitutional provisions went into effect, only 51 percent of Oregon's prison population was engaged in 40-hour/week qualifying activities.
Corrections officials said in a 1996 report to the Governor that it would take ten years to create enough new prisoner job and/or training slots to reach full compliance. In addition, Oregon's existing 10 prisons were designed and built for custody and control --- not to be "factories with fences" --- and therefore lacked available work space for creating the necessary number of new jobs.
Another problem with Measure 17 was its provision that 100 percent of prisoners' pay be deducted, which conflicts with Federal Prison Industry Enhancement (PIE) certification eligibility requirements --- which must be met before prisoner-produced goods can be sold across state lines. Federal law requires that prisoners employed by private sector manufacturers be allowed to keep at least 20 percent of their gross earnings. This created a dilemma for Oregon's prison industries, including their world-famous Prison Blues denim clothing line.
We're obviously between a rock and a hard place, between the state constitution and federal law."' said Department of Corrections Deputy Director Ben de Hann.
As a result of this conflict, and an opinion issued by the state Attorney General's Office, the Oregon Prison Industries Board ordered the Corrections Department to "immediately cease out-of-state sales of Prison Blues clothing, office and other inmate-made products" in January of 1997.
The Department of Corrections Subverts the Constitution
Without inmate labor, we couldn't run the institutions.
The measure ran aground on another serious flaw: What incentive does slavery offer prisoners to perform the day-to-day tasks (cooking, cleaning, laundry, etc.) vital to the operation of prisons? "Without inmate labor, we couldn't run the institutions," said de Hann. "Measure 17 has some serious flaws, and this is one of them. It's obviously exerting a chilling effect [and] may require altering the way inmates have been compensated for 100 years, a system that's absolutely critical to the security of the institutions.
In November, 1996, as Oregon's prisons were placed on lockdown status due to prisoner unrest over impending loss of pay, ODOC spokesperson Jim Lockwood put it more bluntly: stating that the Corrections Department won't force prisoners to work without compensation. He announced that prison officials were considering an alternative incentive system to replace direct compensation. However, the closer such a system gets to hourly compensation, Lockwood conceded, the closer it comes to subverting the constitution.
Some prisoners filed lawsuits because they didn't have jobs.
A month later Oregon's prisons came off lockdown status, and the Department of Corrections unveiled its new compensation plan. Under the new plan, prisoners are awarded "credits" for their labor or participation in approved rehabilitation programs. Once a month these credits are converted into money and deposited in the prisoners' accounts --- money they can then spend on commissary items like coffee, stamps, personal hygiene items and snacks.
Another unforeseen problem with Measure 17 became apparent as some prisoners filed lawsuits because they didn't have jobs, despite a state constitution that mandates jobs. Their legal argument was plain and simple: they had a "constitutional right" to a job.
Corporate Partners Wanted
[The following "Marketing Focus" fax from the Oregon Department of Corrections found its way to Prison Legal News, the full text of which is reproduced here.]
Prime land, buildings, and labor available to nursery industry.
Nursery products-related individuals and business interested in expanding operations through public-private partnerships are sought by the Oregon Department of Corrections. All partnership proposals will be considered --- ideas are limited only by your imagination and your ability to carry out a successful enterprise.
- Prime Willamette Valley farmland close to Salem with easy freeway access (all or parts of more than 1,000 acres are available).
- Buildings (barns, potting areas, greenhouses, shipping facilities, etc.; also propagation and hot room facilities and labor at correctional institutions around the state).
- Minimum-security inmate labor and security correctional officers.
- Enthusiasm, energy, and stability.
Benefits to you:
- Inmates show up each day clean, sober, and ready to work.
- No Immigration and Naturalization Service issues.
- You save money (including workers' comp., insurance, sick leave, and other benefit costs).
Benefits to Oregon
- Your partnership with Inmate Work Programs helps us comply with Measure 17's mandate that all inmates must work at least as hard as the taxpayers who support them.
- You also provide marketable work skills to inmates, potentially facilitating their successful rehabilitation and return to society upon release.
All interested individuals are encouraged to learn more about this innovative opportunity...[contact info deleted].
Measure 49 --- The Fix Is In
Because Measure 17, flaws and all, was enshrined in the State Constitution, corrections officials and state lawmakers were powerless to change it. Changes to the constitution required another statewide vote. And so the legislature drafted Measure 49, and a special election was held in May 1997 to place it before Oregon voters.
Measure 49 enjoyed the editorial endorsement of virtually all of the state's major newspapers. The official State Voters' Pamphlet, published and distributed by the Secretary of State, contained three pages of "Argument in Favor" of Measure 49. There was one page of blank white space published, in lieu of any "Argument in Opposition."
Chief among the arguments in favor of Measure 49 was that it contained new language to fix the problems created by Measure 17, adding key phrases such as: "However, no inmate has a legally enforceable right to a job..." which mooted the lawsuits of prisoners who claimed such a right; and "Except as otherwise required by federal law to permit transportation in interstate commerce of goods..." which resolved the conflict with PIE certification requirements.
Measure 49 passed by a whopping 91 percent margin.
Oregon Jobs Sold Up the River
Missing from the "Arguments in Favor" of the measure, and buried in the obscurely worded measure itself, is some chilling language:
Prison work products or services shall be available without restriction imposed by any state or local law, ordinance or regulation as to competition with other public or private sector enterprises.
In other words, the Constitution of the State of Oregon virtually eliminates the possibility of any challenge brought by "free workers" whose jobs may be "downsized" because of competition from prison-made goods or services produced by unpaid slaves.
Full Speed Ahead
Oregon is now poised on the brink of a $1 billion prison expansion program as the Department of Corrections forecasts a doubling in the state's prison population, to more than 15,000 in the next decade. Accommodating those prisoners will require building as many as seven new "factories with fences" by 2007.
First on the drawing board is a $151 million renovation project to transform the former Dammasch State [Mental] Hospital into a combination women's prison and men's intake center.
The men's intake center will occupy 110,718 square feet of the newly renovated facility near Wilsonville, Oregon, at the vortex of Interstate 5 and Interstate 205, which is already the hub of the state's warehousing and transportation business. The new intake center, slated to open August, 2000, is therefore ideally suited to warehouse prisoners and to receive and ship them around the state.
Prisoners now entering the system spend an average of 9-15 days in an intake center, where they undergo medical and physical evaluations and take a series of written tests designed to measure both educational background and anti-social behaviors, before being assigned to the prison where they will do their time.
"It used to be easy," says Larry Daniels, intake center manager. "All the older guys went to the state penitentiary, the younger guys went to the Oregon State Correctional Institution, and the women went to the women's prison."
Prisoners who arrive at the new Wilsonville intake center will stay for 30-45 days. During that time they will receive intensive evaluations designed to help prison administrators decide which "factory with fences" the prisoner's skills will be most suited for.
"This is strictly about good business," says corrections administrator Larry Herring. "We're using their labor to get the highest possible return while they are incarcerated..."
There are some, like Oregon State Rep. Kevin Mannix, sponsor of both 1994 "get tough" ballot measures, who think the Oregon Department of Corrections can offer a high enough return on investment and low enough labor costs to compete with any Third World sweatshop. Mannix is lobbying hard to lure Oregon-based Nike shoes to come back home.
"We propose that [Nike] take a look at their transportation costs and their labor costs," says Mannix. "We could offer [competitive] prison labor right here in Oregon."
And, so, inscribed above the gateway to one of the seven factories with fences the Department of Corrections will build in the next decade might be a Nike swoosh --- and perhaps the inscription: "Work Makes One Free."
Sources: The Oregonian, Statesman Journal, (AP), Corrections Alert, OR Voters' Pamphlet, lip