Mr Mario Guido
Mario is a PhD candidate at University College London (UK) and a Graduate Lecturer in the Faculty of Law at the same university. His doctoral research concerns the involvement of private companies in the provision of employment for prisoners, as seen through the lens of the Forced Labour Convention of the International Labour Organisation (ILO) in Australia, England & Wales, France, and Germany. Mario previously worked in non-governmental organisations including, Children and Families Across Borders, the Global Detention Project and the International Detention Coalition.
Introduction
From the 1980s onwards, alongside the privatisation of prisons, private prison labour – the practice of employing prisoners through private companies – has gained significant momentum. While the employment of prisoners for private benefit is not new, having been observed as early as the mid-sixteenth century in Spanish America, where prisoners were leased to private employers, the extent of private involvement has significantly increased. This shift raises important questions about fairness, exploitation and the broader implications for criminal justice. Historically, prison labour was primarily seen as a state function, but recent trends have seen a rise in the role of private companies within the criminal justice and prison system. As a result, controversial issues arise including profit motives, conflicts of interest and questions on the lack of public oversight.
Amid labour shortages, the impacts of the COVID-19 pandemic, and a push to reinsert offenders through work, the employment conditions of prisoners are becoming an increasingly prominent topic of discussion and reform in terms of wages and rehabilitative outcomes. Academics like Pandeli, along with the latest report by the Special Rapporteur on contemporary forms of slavery, argue for the need for prison labour to be more closely aligned with the standards of free workers to ensure fairness and effectiveness. This piece summarises my article entitled ‘Beyond Profit: A Model Framework for Ethical and Feasible Private Prison Labour’ published in the European Labour Law Journal and is part of my ongoing PhD thesis at University College London, which proposes a model framework, termed the ‘fair and practically feasible’ model framework of private prison labour, designed to address these challenges. The framework aims to balance rehabilitative goals, economic challenges and feasibility by integrating requirements from the Forced Labour Convention of the ILO, promoting fair wages, meaningful work, and incentives for private companies to employ prisoners.
While I do not argue that private prison labour is the ideal or only means to rehabilitate prisoners through work, I maintain that if states wish to provide rehabilitation in this manner, their systems must meet certain criteria. The systems in place should comply with international obligations, foster rehabilitation and reintegration, minimise unfair competition and job displacement as well as address the criticisms currently levelled against the practice, which existing systems do not effectively resolve.
Prison labour: Definitions and categories
Prison labour is a long-standing practice which has seen its objectives evolve, similarly to the objectives of the prison system itself, from a more punitive to a more rehabilitative approach. According to Roca and Aliaga, prison labour is an “employment activity undertaken by people subject to freedom-restricting measures. This work is usually remunerated and takes place in the context of a labour organisation managed by the actual prison service or by some kind of private or public-sector business organisation, with the ultimate goal of facilitating the working inmates’ reintegration into society.” Prison labour encompasses other considerations that are further discussed in the article, such as that certain prisoners may never be released and thus prison work is not only about reintegration.
The objectives of prison labour, much like those of the prison system, have evolved through time from a primarily punitive to a more rehabilitative one. In the United Kingdom, for instance, prison labour was originally based on the idea of punishment, with prisoners sentenced to ‘hard pointless labour.’ Nonetheless, the modern aim of prison labour is to provide rehabilitation opportunities and lead to successful reintegration through work. While employment is known to aid in reducing reoffending, the link between prison labour and post-release employment is less clear. Although there may be certain variations depending on the country and whether a prison is privately managed, prison labour can generally be categorised into three main types:
Maintenance tasks required for the daily operation of the facility;
Work commissioned and managed by prison authorities; and
Work for private entities.
Regarding the final category, it is important to note that prisoners may work for the benefit of a private entity, within both publicly and privately managed prisons. Different considerations would have to be considered for instance, public supervision, contractual obligations to provide work, or economic considerations, however, the model framework presented in the article applies to both public and private prison labour. In the article, private prison labour is understood as any work that is conducted for the benefit of private entities, including work that is managed by public authorities. The ILO has identified examples of private prison labour arrangements:
Prisoners may work with a private entity as part of an educational or training scheme;
Prisoners may work in workshops within the prison to produce goods sold to private entities in the open market;
Prisoners may work outside the prison for a private entity as part of a pre-release scheme;
Prisoners may provide labour within prisons, contributing to the running of correctional facilities managed by private entities; and
Prisoners may work with private firms outside the prison during the day, returning at night.
Interestingly, prisoners are not considered workers and are thus not covered by national employment law, meaning they are excluded from labour and social security rights. For instance, they are usually excluded from minimum wage legislation, and other rights including the right to form or join a union, the right to collective bargaining, or the right to take industrial action such as strike action.
ILO Forced Labour Convention: Definition of compulsory labour
Article 2(1) of the Forced Labour Convention (No. 29) of the ILO defines forced or compulsory labour as: ‘all work or service which is exacted from any person under the menace of a penalty and for which the said person has not offered himself voluntarily.’ Article 2, on the other hand, provides exceptions to forced or compulsory labour and subsection (2)(c) in effect allows states to force prisoners to work so long as (a) they have been convicted of a criminal offence in a court of law; (b) the work or service they undertake is carried out under the supervision and control of a public authority; and (c) that they are not hired to or placed at the disposal of private individuals, companies or associations. While I will not have the space in this piece to engage in an in-depth explanation of these requirements, what is important to note is that under the Convention, prisoners cannot be forced to work for private entities as this would fall outside the exception of forced or compulsory labour.
Nonetheless, while the standard precludes forced labour of prisoners for private entities, if prisoners voluntarily choose to work, their employment by private entities does not breach the Convention and also falls outside the scope of the exception.
This raises the issue of whether prisoners’ consent to work can ever truly be considered voluntary. The Committee of Experts on the Application of Conventions and Recommendations (CEACR) of the ILO has addressed this issue and imposed a series of conditions, leading to accusations that the Committee has adopted an overly expansive interpretation. In the view of the CEACR, prisoners can only work for private entities if they have offered themselves voluntarily, without the menace of a penalty, providing their formal, freely given and informed consent in writing. Moreover, the conditions under which prisoners are employed must approximate a free labour relationship in terms of the level of wages, the extent of social security and the application of regulations on safety and health. While some discrepancies in wages and social security are permitted, these cannot be disproportionately lower than the free market.
This interpretation is interesting, to say the least, and has created a sharp distinction between public and private prison labour, leading to a situation where the state can force prisoners to work without providing any safeguards, yet prisoners working for private entities must consent and be provided with minimum labour guarantees.
Private Prison Labour: exploitation, conflicting objectives and non-delegable functions?
Private prison labour raises significant moral and philosophical objections, centring on, inter alia, issues of exploitation, conflicting objectives and the delegation of core state functions. Some critics argue that private prison labour is inherently exploitative, as prisoners are often compelled to work for low wages without the legal protections afforded to free workers. This practice enables private entities to benefit from cheap labour, creating perverse incentives where the focus on profit overshadows the rehabilitative objectives of the prison system. The profit-driven approach could conflict with the state’s duty to provide fair and ethical treatment to prisoners, as private interests may undermine the focus on rehabilitation and reintegration.
Furthermore, several scholars believe certain state functions are non-delegable, especially coercive functions. The argument suggests that incarceration, and by extension prison labour, should not be viewed purely as an economic enterprise and that their delegation can lead to conflicts of interest, reduced transparency, and a weakening of public oversight. Such an approach could incentivise the maintenance of growth of the prison population, conflicting with broader societal goals of rehabilitation and reduced reoffending. It might be argued that prison labour is not inherently coercive, particularly when prisoners choose to work voluntarily, however, as explored in my article, customary international law obligates states to provide rehabilitative opportunities, such as prison labour. Therefore by extension, prison labour should be considered a core function of the state. While some states including, inter alia, Australia and England & Wales have privatised core state functions, there is a case for maintaining public control or oversight over prison labour to avoid the risk of exploitation. This is not to say that states are necessarily pro-social and private entities are anti-social, yet the marketisation of the penal system creates these additional risks. On the other hand, the development of a framework that ensures public accountability and control and that seeks to eliminate the risk of exploitation could help address these issues.
Private Prison Labour Framework: Fair and practically feasible
The ‘fair and practically feasible’ model framework of private prison labour seeks to balance the goals of prisoner rehabilitation with the interests of private companies, addressing concerns over exploitation, unfair competition and job displacement. The framework has two main components: a ‘fair’ and a ‘practically feasible’ component. The ‘fair’ component is made up of a set of criteria whilst the ‘practically feasible’ component refers to the idea that for private entities to remain interested in providing labour to prisoners, they must benefit in some way. For those interested in a more in-depth discussion of the model and its criteria, I would kindly direct you to my article. To provide a concise overview of each, I will present a brief summary here.
The ‘Fair’ component
(i) Forced Labour Convention requirements
The model incorporates several requirements from the Convention such as: prisoners must be sentenced; their work must be supervised by a public authority; they must consent to their employment in writing through a contract; and that their employment conditions including wages, social security and occupational safety and health approximate those of free workers. These requirements intend to maintain public accountability, prevent coercion and provide some of the essential elements of an employment relationship.
(ii) Preventing unfair competition and job displacement
To address concerns that private prison labour could lead to unfair competition and job displacement, the model proposes that prisoners’ wages be set closer to those of free workers and includes provisions for social security benefits. It also suggests potential restrictions on direct competition with local businesses to reduce negative impacts. This approach seeks to limit advantages that private companies might gain by employing ‘cheaper’ labour, thereby minimising the risk of displacing non-incarcerated workers.
(iii) Promoting rehabilitation and reintegration
The model emphasises that work provided to prisoners should be ‘meaningful’, offering employment skills, personal development and social competence. It recognises the difficulty in defining such work but maintains that the goal is to align work opportunities with current and future labour market demands, ensuring that prisoners acquire relevant skills for employment post-release. This focus on meaningful work aims to humanise prison labour and reduce recidivism by fostering long-term change.
(iv) Post-release employment consideration
A key component of this model is to encourage private employers to consider the continuation of an employment relationship formed in prison, upon the release of the prisoner. This provision is modelled on the recent legislative changes in France, which have aimed to improve the integration of former prisoners into the workforce. Article 719-11 of the French Criminal Procedure Code provides for an obligation to consider the continuation of an employment contract formed during incarceration to extend beyond release if both the detainee and employer agree. The provision recognises that maintaining employment relationships after release can aid in the transition from incarceration to society, providing stability and reducing the risk of recidivism.
The ‘Practically feasible’ component
(i) Ensuring practical feasibility for private entities
Finally, the ‘practically feasible’ component refers to the idea of making prison labour attractive to businesses while safeguarding prisoners’ rights. The model thus proposes alternative incentives beyond low wages, such as tax breaks, subsidies, grants, priority in being considered for relevant government procurement contracts or other benefits. These incentives aim to align private sector participation with rehabilitation goals rather than purely profit-driven motives. As highlighted in my article, this idea has been floating around for some time such as in the United Kingdom, yet in post-release employment situations rather than in prison labour settings. Since the publishing of the article in September, I have found that to incentivise private companies to provide labour to prisoners, the French government provides the workshop facilities within prisons free of charge, undertakes administrative tasks such as payroll and prisoner employment contracts as well as pays for certain employer contributions on behalf of the private entity.
Concluding Remarks
The evolving landscape of private prison labour presents a complex set of considerations. As explored, the surge in private sector involvement in prison labour raises issues about fairness, exploitation, unfair competition and job displacement as well as the impact on the criminal justice system. The ‘fair and practically feasible’ model framework aims to address these concerns by integrating key principles from international labour standards and ensuring that employment conditions approximate those of free workers. The model’s approach seeks to align the rehabilitative aims of prison labour with the interests of a private company and create a fairer system of private prison labour. It emphasises meaningful work and higher wages, while also opening the door for other incentives for private companies rather than simply ‘cheap’ labour. Additionally, the importance of post-release employment highlights a crucial step towards facilitating smoother reintegration for former prisoners and aligns with current trends. Moving forward, further research is required to refine and add additional components to the model and evaluate its potential implementation. In my PhD thesis, the analysis of current private prison labour systems against the framework will provide a necessary step to determine challenges in its implementation as well as gaps in current systems.
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