Factories with Fences: An Analysis of the Prison Industry Enhancement Certification Program in Historical Perspective

By Misrahi, James J. | American Criminal Law Review, Winter 1996 | Go to article overview

Factories with Fences: An Analysis of the Prison Industry Enhancement Certification Program in Historical Perspective


Misrahi, James J., American Criminal Law Review


I. Introduction II. Private Sector Involvement in Prison Industry in the

Nineteenth Century

A. The "Congregate" and "Separate" Systems

B. Forms of Private Sector Involvement III. Decline of Private Sector: Prison Industry IV. Reemergence of the Private Sector: Prison Industry

Enhancement (PIE) Certification Program

A. Provision and Goals of the PIE Program

B. Models of Private Sector Involvement

V. How the PIE Program Has Overcome the Historical

Difficulties Associated with PRivate Sector Involvement in

Prison Industry by Replicating a Real World Working

Environment

A. Specific Benefits of the PIE Program to the Main Interest Groups

Involved in Prison Industry

B. Convict Laborer

C. Private Contractor

D. Free Laborer

E. Legislators and Prison Administrators

F. The Public

VI. Conclusion

I. INTRODUCTION

During the past fifteen years the criminal justice system has undergone a significant revolution in which retributive schemes of justice, as opposed to rehabilitative notions, have been emphasised.(1) The outcome of this political swing means that we are spending more money on incarceration and are building prisons at a faster rate than at any previous time in this nation's history.(2) While great energy has been spent putting people behind bars, very little thought has been given to what to do with them once they are there. While the idea of work as a tool of reform has always been a part of the correctional mainstream, the idea of introducing private enterprise into prison industries is a novel idea that has been gaining some currency.(3) One reason for the resurgence of interest in the private sector is the inherent inefficiency of traditional state prison industry in an era of fiscal strigency.(4) Therefore, the possibility of making prisons less expensive, if not profitable, is certainly tantalizing to policy makers. Another reason is the realization that employment in traditional state industries has failed as a method for reforming the offender.(5) Many states have therefore turned to the private sector in search of solutions to their prison problems.(6)

As part of an experimental program, Congress authorized the Prison Industry Enhancement (PIE) program through the Justice System Improvement Act of 1979.(7) The PIE program brings the private sector into prison industry by exempting certified correctional agencies from legislative restrictions on the transportation and sale of prison made goods in interstate commerce provided that prisoners are paid minimum wage and certain other criteria are met.(8) The program additionally authorizes deductions of up to eighty percent of gross wages for taxes, room and board, family support, and victim compensation.(9) This Note explains how the PIE program has overcome the historical problems of convict exploitation and free labor competition associated with private sector involvement in prison industry. In addition, this Note advocates expanding the PIE program and recommends applying its principles as a model to states wishing to reform their correctional institutions.(10) This Note is not, however, about privatizing prisons, a concept that envisions turning an entire prison facility or prison system over to the custody and control of the private sector.(11) While persuasive arguments can be made in support of privatization, such a discussion is beyond the scope of this Note. This Note is about fundamentally changing the way work is performed in prisons by allowing the private sector to employ inmates at minimum wage and, ultimately, to market and sell prison-made goods in the Stream of commerce. This Note posits that such an approach would provide the most benefit to the public, the taxpayers, the prison administrators, and ultimately the prisoners themselves.

II. PRIVATE SECTOR INVOLVEMENT IN PRISON INDUSTRY IN THE NINETEENTH CENTURY

A. …

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