CALIFORNIANS IN THE November election will vote on a ballot measure that would change the state Constitution to ban the practice of forced labor in jails and prisons, a proposal advocates say would wipe out a legacy of enslavement that dates to the 19th century.
If Proposition 6 passes, correctional officers could not order an inmate to work. What’s less clear is what might happen if an inmate wants to work in one of the thousands of prison jobs that allow them to earn small amounts of money or to build skills.
No one can say with certainty, but it raises the possibility that inmates could be paid minimum wage for work they perform while incarcerated.
The legal precedent that allows California prisons to pay sub-minimum wage to inmates — less than 74 cents an hour for most — draws in part from the provision in the state Constitution that would be overturned if voters pass the anti-slavery amendment.
Deleting the provision that bans slavery except as punishment for a crime could open the door to higher pay for inmate labor depending on how courts interpret the ballot measure, according to experts and an analysis by the Senate Appropriations Committee.
“The long-settled legal doctrine here depends on constitutional permission for forced labor as punishment for crime,” said David Carrillo, executive director of Berkeley Law’s California Constitution Center, in an email to CalMatters. “Removing that support raises difficult questions that courts will need to rethink — without an established foundation to build on.”
Those questions derailed a similar proposal two years ago, when the state Finance Department estimated that paying minimum wage to inmates would cost taxpayers $1.5 billion a year. California’s entire corrections budget is expected to cost $18 billion this fiscal year.
This time, Gov. Gavin Newsom signed a separate law that will take effect if voters pass the ballot measure and would empower prisons to create voluntary work programs. The law does not detail a new pay scale. Only time will tell if local governments and the prison system set wages that preserve the current network of jobs for inmates.
“The idea that we would have to pay individuals should have never been any reason for us to not end slavery, because we should not be interested in exploiting human labor.”
Carmen-Nicole Cox, ACLU California Action
Money — for inmate workers or in increased costs to taxpayers — is not the primary consideration for the advocates who want to ban forced labor in prisons.
The proposal is one of one of 14 bills the California Legislative Black Caucus prioritized this year from a state-funded reparations task force in 2023.
California was not a slave state, but its Constitution has allowed since its inception for involuntary work as a form of legal punishment. Several other states, including Colorado and Alabama, have also recently adopted measures banning involuntary servitude in the past few years.
“The idea that we would have to pay individuals should have never been any reason for us to not end slavery, because we should not be interested in exploiting human labor,” Carmen-Nicole Cox, director of government affairs with ACLU California Action, previously told CalMatters.
Increased pay for inmate workers in 2 states
California’s prison system employs just under 40,000 workers across various industries, including firefighters, technicians, custodians, construction workers, food service workers and hospice care staff. It pays depending on their skill level and expertise, and incarcerated individuals can also earn credits to get time taken off their sentence.
Most of them earn less than 74 cents an hour, although inmate firefighters have a higher pay scale of up to around $10 a day. California’s minimum wage is $16 an hour, and state law permits the corrections department to pay up to half of that rate.
Other states also pay far below their state’s minimum wage for non-incarcerated employees, though there are notable exceptions.
The U.S. 4th Circuit Court of Appeals ruled in May that Maryland workers at a recycling plant outside of prison walls could be eligible to receive minimum wage under federal law. Legislation in Colorado gave minimum wage to a portion of inmate workers in an off-site program in 2022, but other states have seen failed legislative efforts surrounding minimum wages for inmates.
California courts have consistently upheld pay below the minimum wage for prison inmates. Most recently, the California Supreme Court in April dismissed claims from inmates at Alameda County’s Santa Rita Jail who wanted minimum wage for their work with a food services contractor. The justices found the inmates were not entitled to pay.
But if the new anti-slavery measure passes, federal employment laws, including those on wages and benefits, might begin to cover inmates who are required to work, Carrillo said.
Carillo said inmates in certain circumstances could challenge their pay under a voluntary work program, potentially by claiming they were coerced to earn benefits. Another scenario could be that they claim the compensation they receive is not sufficient to make the work actually voluntary.
Cost of minimum wage for inmate workers
Such concerns have previously loomed over anti-slavery discussions in the Legislature. Sen. Steve Glazer, a Democrat from Orinda, opposed the previous proposal to prohibit forced labor. Aside from the cost, he warned that it could decrease restitution for victims if inmates refuse to work, “undermine our rehabilitation programs” and “make prisons more difficult to manage safely”
“Inmates will sue the state claiming their wages are too low, their hours are too high, or that it is unconstitutional to tie good time credits and early release to their willingness to work,” Glazer said in a written statement from 2022.
He voted for the bill and its companion legislation this time around. A spokesperson for Glazer declined to comment further.
The new measure does not contain language Glazer asked for back in 2022, such as an exemption for food service workers and groundskeeping staff from the definition of involuntary servitude.
‘Never about wages’
Activists who fought to revive the measure are hopeful that voters will pass it. They see the voluntary work clause as a concession that will allow them to keep the conversation focused on the conditions incarcerated workers are facing.
“We’re not saying that it’s right what the wages are, whatsoever, but that’s a whole different issue,” said Esteban Nuñez, a chief strategy consultant and lobbyist for the Anti-Recidivism Coalition, who has pushed for higher wages for inmates in the past. “This was never about wages, it was about just literally giving somebody the agency to tailor their own rehabilitative programming journey.”
He cited a case in 2022 where a Colorado judge ruled that, despite the state’s anti-slavery amendment, incarcerated workers did not qualify for minimum wage. Supporters were willing to go along with the voluntary work measure, he said, “because we know that we can always go back to change the implications of what it means to end slavery in California.”
The state’s prison system, meanwhile, hasn’t finished crunching the numbers on how much it believes the measure could cost.
But a spokesperson for the corrections department reiterated that it “values the contributions of its incarcerated workers and is committed to its mission to prepare people in its custody for a successful return to their communities.”
“We are still working on our fiscal analysis of the measure,” spokesperson Mary Xjimenez said in a statement to CalMatters. “We will be following the results of this issue after the November election.”
This story originally appeared in CalMatters.