The American Civil Liberties Union of West Virginia has joined a friend of the court brief along with the ACLU of Maryland and others urging a court to recognize the rights of incarcerated workers, who are disproportionately Black. 

The full press release is below: 

BALTIMORE COUNTY, MD – Speaking out in a case involving Marylanders incarcerated at the Baltimore County jail, a coalition uniting the national ACLU, several ACLU state affiliates, and local civil rights and racial justice groups are shining a light on how modern-day prison labor practices in Maryland and elsewhere descend from the enslavement of Black people and urging the United States Court of Appeals for the Fourth Circuit to reject dehumanizing assumptions about incarcerated workers, who are disproportionately Black.

The groups are urging the Court to declare, as have other courts, that the federal Fair Labor Standards Act (FLSA) applies when incarcerated workers are working alongside other workers in the community; that prisons and jails do not have a blank check to exploit people who are incarcerated; and to recognize the devastating impacts on families, communities and public safety when the government exploits people in its custody for financial benefit.

In a filing last week, the groups ask the Court to accept their “friend of the court” brief in Scott et al. vs Baltimore County tracing the racist history of prison labor in the United States and its continuing legacy of harm to incarcerated workers in Baltimore County and in other work programs at prisons and jails throughout the Fourth Circuit (Maryland, Virginia, West Virginia, North Carolina, and South Carolina) – workers who are disproportionately Black in every Fourth Circuit State, and majority Black in Maryland and South Carolina. The brief documents how tactics used by white-owned business interests to re-capture, incarcerate, and re-enslave Black people after emancipation led to mass incarceration and are connected to the prison labor policies of today, including, for example, prisons sited on former plantations where workers cultivate some of the same crops as people who were enslaved – for cents an hour.

Baltimore County took the highly unusual step of opposing the groups’ friend-of-the-court filing, contending that the racist history of the jail’s prison labor practices is “inflammatory” and “irrelevant.” However, the Court promptly rejected the County’s contentions, and accepted the groups’ brief for consideration as part of the appeal.

One of the Brief’s lead authors, ACLU of Maryland Senior Staff Attorney Sonia Kumar, said: “When we look back at our own history, we see the same rationales that were used to justify this country’s most shameful, racist practices being used to justify paying incarcerated people, who in this State are majority Black, cents an hour for their hard work. Treating people as less than human is never the solution and it is time for us to recognize that.”

The plaintiffs in the case are people currently or formerly incarcerated at the Baltimore County jail who were assigned to work under extremely harsh conditions at the County recycling facility. There, the plaintiffs worked alongside “free world” employees sifting recycled materials off a conveyor belt. However, unlike their “free world” counterparts, the plaintiffs often worked extended 12-hour shifts six days a week and received no more than $20/day – less than $2/hour – despite toiling in harsh conditions without adequate food or clothing.

Lea Green, president of Maryland CURE, said: “My son is serving a life with parole sentence and works in a sign shop. Prisons are too often like businesses and shouldn’t be based on making a profit on the misery of people. The idea that you can work people like this, pennies on the dollar, treating them as less-than, it’s nothing but modern-day slavery. How can you expect people to come out whole and be rehabilitated? Living wages aren’t wrong to ask for when you’re behind walls, so people can help take care of their families.”

The groups’ amicus curiae brief begins:

Modern-day prison labor descends from the enslavement of Black people. After the Thirteenth Amendment abolished race-based slavery, the criminal legal system was used to replicate its oppressive structural framework, through convict leasing, chain gangs, and forced “public works” projects. Today, Black people are disproportionately represented as incarcerated workers in this Circuit, and in some places represent the majority of such workers. They engage in work within and outside of prison walls, for public and private employers, in often hazardous conditions. They receive little or zero pay, despite having to purchase basic necessities like food and telephone calls with family. The justifications for this system echo the rationales used to justify earlier forms of racial oppression, dehumanizing people by insisting that exploitation illegal in any other context is for their own good.

Carl O. Snowden, convenor of the Caucus of African American Leaders, said: “We must always be aware of our history, even more when it can be hard to face, because the legacies of injustice and racism time and again influence unfair policies today. I encourage our leaders to embrace this opportunity to ensure the rights of all workers are protected.”

The County argues that people who are incarcerated don’t need money because jails and prisons provide for their every need, a claim that is completely at odds with reality – people inside often must purchase basic necessities like food and hygiene items in order to survive, pay to have contact with their families, and save to be able to pay fines, fees, and for housing and other immediate needs upon their release. Far from having their basic needs met, incarcerated workers and their loved ones are forced into the very economic vulnerability that the FLSA was intended to protect against, trapping them in cycles of poverty despite their hard work. And the harms of failing to pay incarcerated workers spread far beyond the walls into the larger community – both in terms of failing to prepare them for reentry and in terms of the sheer financial burdens on families. Nationally, families spend an estimated $1.6 billion per year on commissary accounts and $1.3 billion on phone calls alone.

Martina Hazelton, co-founder of the Lifer Family Support Network, said: “Compensating incarcerated persons is necessary but compensating incarcerated persons at a living wage is a must. Jails nor prisons provide what a person needs to meet their daily needs. The pandemic exposed the lack of soap, laundry detergent, food and the like as it was clear that some folks simply go without. This burden is shifted to the families and when those on the inside are not paid a decent wage the loved ones must stand in the gap. Black women are overwhelmingly shouldering this financial hardship, oftentimes at the expense of their own needs.”

Importantly, the FLSA does not exempt incarcerated workers from coverage. With their amicus brief, the groups argue that there is no categorical exclusion of incarcerated workers from FLSA protections and ask the court to rule that Marylanders who worked at the recycling center alongside “free world” employees are covered by the FLSA.

Contributing to the brief as counsel for the organizations are: Sonia Kumar and Deborah A. Jeon from the ACLU of Maryland; Jennifer Wedekind from the ACLU National Prison Project; Kristi Graunke and Samuel J. Davis from the ACLU of North Carolina; and Aubrey Sparks and Nicholas Ward from the ACLU of West Virginia. Other contributors included Gina Elleby from the ACLU of Maryland, Jennifer Turner from the ACLU Human Rights Project, Allen Chaney from the ACLU of South Carolina, and Eden Heilman from the ACLU of Virginia.