by River Lord
Using the labor of inmates in the United States has a long and controversial tradition. Many observers have identified how higher rates of policing and incarceration among minority communities, coupled with the widespread use of inmate labor in exchange for sub-minimum wages, create a system of labor exploitation and racial oppression mirroring a modern day slavery. While several states have recently enacted legislation improving the employment prospects of individuals with criminal records, incarcerated individuals legally receive sub-minimum wages under federal and state law.
California’s Conservation Camp Program recently reignited the public debate regarding the use of inmate labor. Headlines of inmate wildfire fighters garnered national attention and sparked general outrage about the sub-minimum wages paid to inmates engaging in life-threatening labor, only to later be barred from employment opportunities as firefighters upon release. The state’s reliance on inmates to fight wildfires has been made even more apparent since the onset of the COVID-19 pandemic, as early release policies aimed at reducing correctional facility crowding to slow the spread of illness among inmates have resulted in a drop in available Conservation Camp participants. While the public debate has focused heavily on the wages paid and post-release employment opportunities afforded these wildfire-fighter inmates, the question remains whether the use of inmate labor for such a dangerous task comports with the Eighth Amendment’s prohibition against cruel and unusual punishment, which guarantees safe conditions of confinement.
In response to concerns about the treatment of wildfire-fighter inmates, California Governor Gavin Newsom signed AB-2147 into law on September 11, 2020. The law establishes expedited criminal record expungement procedures for “successful” Conservation Camp participants. While AB-2147 exemplifies the efficacy of negative public attention in quickly generating progressive legislation, it only improves the situations of inmate firefighters while incarcerated and fails to address the prison labor system as an institution.
The Conservation Camp Program is staffed on a volunteer basis. However, due to the explicit and implicit coercive forces influencing participation in a dangerous work program, the difficulty of obtaining informed consent from an incarcerated population, and the deprivation of benefits afforded civilians engaged in similar work, the use of inmate labor for inherently dangerous jobs should be barred under the Eighth Amendment’s guarantee of safe conditions of confinement. The prison environment drastically restricts the agency of incarcerated individuals, constraining traditional and contemporary notions of the capacity to give informed consent. Factoring in how licensing statutes limit the employment opportunities of people with criminal records, the possibility of expungement as a reward for engaging in dangerous work assumes a darker and more coercive character than its presumably well-intentioned origins would suggest.
The Expungement Incentive and (Lack of) Benefits to Program Participants
Under AB-2147, inmates who “successfully” complete the Conservation Camp program become eligible for expedited expungement procedures upon release. Viewed most positively, AB-2147 offers a small group of inmates the most powerful advantage available to those who have had encounters with the criminal justice system—distance from it. Unfortunately, offering expedited expungement as an end-goal reward for engaging in life-threatening work further constrains voluntariness and the capacity to obtain informed consent in the prison environment.
Expungement will result in clear, positive outcomes for those who initiate the process and are able to re-enter society with a clear record, including greater employment, housing, and even educational opportunities. It is also possible that expedited expungement procedures for program participants will improve the rehabilitative potential of the Conservation Camp by increasing the likelihood of employment after release. However, because the expedited procedures are only available to “successful” program participants, there are coercive inducements to volunteer in the first instance and also to complete the program once begun. Unfortunately, the vast majority of the prison population stands to gain nothing from the law. By solely offering an expedited expungement process to those who complete the program successfully, the state prioritizes not a concern for the wellbeing or prosperity of individuals with criminal records, but the goal of maximizing each person’s contribution to the inmate labor market. The offer of expungement after performing a dangerous job seems to pose two options to many program participants: risk your life in prison or sacrifice your future outside of it.
Further, AB-2147 affords incarcerated individuals no substantial compensation for their risk while they are still in the program. The benefits conferred by AB-2147 lie firmly outside of the prison environment, only kicking in after an inmate has already served their time. In May 2019, civilian firefighters earned a median salary of $50,850 per year, or $24.45 per hour. Beyond baseline wages, however, civilian firefighters and their families are afforded both state and federal benefits in exchange for the risk they undertake to keep others safe. Inmate firefighters are afforded no comparable recompense.
Eighth Amendment Concerns
Inmate firefighters might enjoy the same benefits as other firefighters if they go through expedited expungement procedures and are hired as civilian firefighters after release, but first they must survive the conditions of their confinement while in prison. In Helling v. McKinney, the Supreme Court affirmed that the Eighth Amendment protects inmates from prospective harm resulting from dangerous conditions of their confinement. In affirming the inmates’ right to sue under the Eighth Amendment for potential future harm due to exposure to environmental tobacco smoke (ETS), the Helling court noted:
[W]hen the state by affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment . . . .
Helling continued to clarify that “[i]t is cruel and unusual punishment to hold convicted criminals in unsafe conditions” and that “a remedy for unsafe conditions need not await a tragic event.” Further, the Court left open the possibility of other Eighth Amendment challenges to prison conditions, stating that “[not] only deliberate indifference to current serious health problems of inmates is actionable under the Eighth Amendment.” Some courts have recognized that the Eighth Amendment likewise proscribes cruel and unusual punishment in the realm of prison work assignments. Building on this precedent, the use of inmates for dangerous prison labor assignments might be successfully challenged.
Alternatives to AB-2147
Lawmakers seeking to improve the conditions of confinement faced by U.S. prisoners and expand employment opportunities for individuals with criminal records should aim to draft legislation with broad reach. To this end, AB-2147 should be amended to increase wages paid to inmates and include hazard pay and benefits comparable to those afforded civilian laborers. Generally, legislation preventing state and local licensing boards from considering convictions that do not bear a substantial relationship to the responsibilities and duties of the occupation—and, defining “substantial relationship” with greater precision—will serve to increase employment opportunities for individuals with criminal records and, consequently, reduce recidivism. Ultimately, restricting future employability to the narrow portion of the prison population that is willing and able to engage in wildfire fighting for mere dollars per day is a macabre policy that engineers an unnecessary scarcity of employment prospects for those with criminal records. Overall, legislation reforming the operation of the prison labor system should be crafted to have the broadest reasonable scope so that prison work assignments do not operate like post-sentencing punishment addenda.
Though Eighth Amendment jurisprudence has yet to keep pace with the rapidly evolving standards of decency characterizing a modern, progressive society, there is substantial foundation in the present law to expand the rights and protections afforded some of the most vulnerable members of the population. Inherently dangerous prison work assignments which incentivize volunteerism by offering reduced prison time, criminal record expungement, and social redemption implicate the long-held debate regarding the propriety of the prison labor system and its slavery, convict-leasing, and chain gang antecedents while raising the stakes with the threat of loss of life or health. The case study of California’s AB-2147 provides an example of a well-intentioned effort that ultimately succumbs to impotence at best and destructiveness at worst. In drafting reform measures, states should aim to improve the conditions of confinement afforded inmates while still incarcerated. States should also construct expansive occupational licensing and regulatory reforms that will have the greatest impact on all former inmates seeking to re-enter the labor market. Rather than continuing to leverage freedom, social acceptance, and future employment prospects against one’s willingness to surrender their life to the state, shapers of the U.S. criminal justice system must reconcile with its past and present in imagining a better future.
 J.D. Candidate, University of Minnesota Law School Class of 2022, JLI Vol. 40 Articles Editor.
 In the bioethics field, for instance, prisoners have long been considered paradigmatically unable to provide informed consent and are understood to be a vulnerable population requiring special protection. See David J. Moser et al., Coercion and Informed Consent in Research Involving Prisoners, 45(1) Comprehensive Psychiatry 1, 6 (2004) (emphasis in original); Relatedly, federal law bars sexual contact between inmates and prison guards, even when the contact was allegedly consensual. Off. of the Inspector Gen., Deterring Staff Sexual Abuse of Federal Inmates. (2005), https://oig.justice.gov/sites/default/files/archive/special/0504/index.htm#:~:text=Federal%20law%20criminalizes%20all%20sexual,2241%2C%202243%2C%20and%202244.&text=Because%20prison%20employees%20control%20many,of%20force%20or%20overt%20threats. (“Even if a sexual act would have been considered consensual if it occurred outside of a prison, by statute it is criminal sexual abuse when it occurs inside a prison.”); Nat’l Prison Rape Elimination Comm’n Rep. 13 (2009), https://www.ojp.gov/pdffiles1/226680.pdf (“The power imbalance between staff and prisoners vitiates the possibility of meaningful consent, and the threat of punishment would deter prisoners from reporting sexual misconduct by staff . . . Prisoners should never be punished for sexual contact with staff, even if the encounter was allegedly consensual.”).
 California currently does require employers to make relevancy determinations and individualized assessments of job applicants with criminal records, as well as offers certificates of rehabilitation. In this way, California offers a somewhat flexible policy in its criminal records restrictions and licensing determinations. See Cal. Gov’t Code § 12952(c)(1)(A) (2017) (“An employer that intends to deny an applicant a position of employment solely or in part because the applicant’s conviction history shall make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the position.”). However, there are exceptions limiting the applicability of these requirements. See Cal. Gov’t Code § 12952(d) (2017) (excepting certain employers, including “state or local agenc[ies] . . . otherwise required by law to conduct a conviction history background check,” from complying with the above requirements).