The United States is both a world leader in the protection against forced labor – and one of the world’s most practiced and committed violators. This hypocrisy is due to an inherent contradiction in U.S. law: while it is illegal to import goods produced with forced or prison labor, it is not illegal to produce goods using prison labor or export goods produced in such a manner. This inconsistency means that incarcerated workers in the United States produce products that can – and likely are – exported to other countries, where they can be sold, perhaps even labeled as “Made in USA.”
In 2024, nearly two million people in the United States are languishing in local and tribal jails, state and federal prisons, and other detention facilities. This prison system extracts labor from those who are incarcerated, often for little or no pay. This staggering injustice is possible — and legal — because of a single phrase in the Thirteenth Amendment to the US Constitution: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Those few words have allowed forced labor to continue in the United States since the Thirteenth Amendment’s ratification in 1865.
Roughly 80 percent of incarcerated workers perform jobs that keep correctional facilities operating – such as cooking, cleaning, doing laundry, or rewiring electrical grids – and nearly fifteen percent contribute to public works assignments or to “state-owned prison industries” that produce goods for use by other state agencies. These jobs are devastatingly exploitative. This post, however (and CAL’s February 2024 report, Breaking Free of the Thirteenth Amendment’s Slavery Exception), focus on the nearly 40,000 individuals – approximately five percent of all incarcerated workers in state and federal prisons – laboring in work release programs, in factories, and on cotton plantations and chicken farms for the benefit of private companies.
For over two years, CAL has traced supply chains – from U.S. prisons to buyers to brands and to stores – to the extent possible in these intentionally opaque supply chains. Our work has brought to light the many ways in which companies take advantage of prison labor and profit from it, exploiting loopholes and weaknesses in the legal framework.
For more information on U.S. prison labor and related supply chains, take a look at both CAL’s 2022 report, Convicted: How Corporations Exploit the Thirteenth Amendment’s Loophole for Profit and CAL’s 2024 report, Breaking Free of the Thirteenth Amendment’s Slavery Exception.
This post begins with a brief overview of the current legal frameworks regulating the import and export of goods produced by incarcerated workers within the United States, explaining some of the contradictory elements in U.S. law. It then examines import prohibitions for goods produced with forced or prison labor in other jurisdictions – including the United Kingdom, Canada, and the newly passed forced labor regulation in the European Union – and calls on countries to stop importing any and all goods produced in U.S. prisons to curb the market for cheap U.S. goods produced in abusive ways.
U.S. Prison Labor: Breadth and Depth of this Practice
The modern U.S. prison economy is a direct descendent of the very atrocity the Thirteenth Amendment purported to condemn – slavery and the domestic market it sustained – and it continues to rely on forced labor. The Thirteenth Amendment’s exception to the prohibition on slavery and servitude has allowed private capitalists and entities to profit by exploiting a vulnerable, shackled, and disproportionately Black, Brown, and low-income workforce. This was true in the nineteenth and early twentieth centuries, when companies leased convicts from states for nearly nothing, and it remains true today.
Incarcerated workers are exploited in all types of jobs within the carceral system and lack minimum job protections. In private industry jobs, incarcerated workers are not entitled to the minimum wage or to safety and health protections, they do not enjoy the right to form labor associations, they are often restricted from managing – or retaining – the scant wages they do make, they are generally restricted from bringing (and, as a practical matter, rarely succeed on) civil claims against employers or state officials after being injured while working, they are frequently barred from receiving workers’ compensation, and they are punished – sometimes severely – for refusing to work or for requesting a safer position. As a result of this dearth of basic protections, workers are often injured, sometimes seriously, while producing goods for large corporations to rake in profits.
This system – which generates tremendous wealth for states and private actors alike – is emblematic of a deeply entrenched national commitment to both capitalism and race-based labor exploitation. This system – and the profits companies make from it – are also sanctioned by a web of U.S. laws.
The U.S. Legal Framework for Goods Produced in U.S. Prisons
The laws regulating the production and sale of goods produced by incarcerated workers within the United States are convoluted. In theory, the law prohibits the sale of goods produced with prison labor across state lines. The Ashurst-Sumners Act of 1935 (as amended in 1940) criminalized the transportation of goods produced in US prisons across state lines for private use, restricting any individual from “knowingly transport[ing] in interstate commerce… any goods, wares, or merchandise manufactured, produced, or mined, wholly or in part by convicts or prisoners.”
However, there are numerous exceptions to this prohibition – rendering it in many cases moot. These exceptions include all services rendered by incarcerated people (such as call centers or cleaning centers); agricultural goods; any good produced for use by the government or certain non-profits; goods produced by incarcerated people employed by UNICOR, a federally-owned corporation; companies working with UNICOR to manufacture goods; and joint ventures between states and private corporations.
Moreover, once a good enters the open market, it becomes all but untraceable, as there is minimal oversight. Little is known about where or to whom a head of cattle or bushel of wheat is sold after the initial sale. Perhaps it remains in the state where individuals in US prisons produced it, perhaps it is sold to another U.S. state, or perhaps it is exported – to Mexico, Canada, or elsewhere.
The U.S. Legal Framework: A Contradiction
Ironically, although the United States condones the use of prison labor domestically (and companies benefiting from below-market labor costs brag about its efficacy), it simultaneously has one of the most robust frameworks for prohibiting the importation of goods produced with forced or prison labor.
Under Section 307 of the Tariff Act of 1930, goods produced with forced or prison labor are prohibited from entering the United States. Additionally, under the Uyghur Forced Labor Prevention Act (UFLPA) and the Countering America's Adversaries Through Sanctions Act (CAATSA), there is a rebuttable presumption that goods produced in the Xinjiang Autonomous Uyghur Region (Uyghur Region) in China or by North Korean workers were produced with forced labor and therefore are prohibited from being imported into the United States.
Unlike the complex legal framework that theoretically regulates the sale of prison-made goods within the United States, there is no prohibition on exporting goods produced with prison labor to foreign countries. As a result, we are left with a contradictory framework in which goods produced by incarcerated workers abroad cannot enter the US market and goods produced in US prisons cannot be sold across state lines – but they can be sold across foreign borders.
This means that, for example, rice produced in fields in a Louisiana prison can be exported from the port of New Orleans to the benefit of multinational companies, but fish cultivated by incarcerated people in Colorado cannot be sold to a buyer in Montana (unless it falls into one of the seven exceptions) – but that same fish may be exported to Canada.
This contradiction and massive loophole means that the U.S. is very likely exporting prison made goods to foreign countries, all while claiming to lead the world in enforcement of its import prohibition.
Other Countries Should Ban Goods Made in U.S. Prisons
Numerous countries either have, or are in the process of passing, import prohibitions for goods produced in fundamentally abusive conditions. The United Kingdom has a law prohibiting the importation of prison-made goods, as does New Zealand.
Canada’s Fighting Against Forced Labour and Child Labour in Supply Chains Act went into effect on January 1, 2024, prohibiting the importation of goods produced with forced labor. While it has yet failed to make much progress, Mexico is supposed to have such a law, as required by the USMCA. Meanwhile, the European Union – with 27 member states – recently passed a forced labor prohibition.
Import prohibitions, especially Section 307 and the UFLPA, have been shown to be effective tools for changing corporate behavior. The fear of having goods shut off from a market can be a strong incentive to companies to clean up their supply chains. It is therefore imperative that countries that have import bans begin enforcing them against goods produced with U.S. prison labor. As more countries pass forced labor prohibitions, we urge their legislators to take a hard look at goods produced in U.S. prisons and to ensure that such goods do not evade human rights-based import restrictions.
The United States should not be using exploitative prison labor to produce goods – or exporting cheap goods produced with discounted labor costs due to exploitation. Instead, the US should bring its domestic laws in line with trade laws that regulate imports and protect incarcerated individuals from exploitation so that we curb the market for – and production of – goods produced with prison labor within the United States and abroad.
Allie Brudney is a Senior Staff Attorney at Corporate Accountability Lab.
