Late last fall, Idaho state Sen. Patti Anne Lodge, R-Huston, stood in an unpicked orchard. The trees were heavy with apples, some rotting on the ground around her. The window of time to harvest was over. “The apples were just hanging frozen on the tree, a whole orchard, because they couldn’t get anybody to pick them,” said Lodge. “I wish I had taken a picture.”
But Lodge isn’t a photographer; she’s a legislator. So instead, she sponsored a bill in the spring 2014 legislative session that she believes will prevent future harvests from going to waste. S.B. 1374, which was signed into law by Gov. C.L. “Butch” Otter on March 26, will enable private employers to hire state prisoners for agricultural labor.
Lodge’s bill is one of many similar measures introduced across the country in the last 10 years. Prisoners are increasingly called on to harvest the food Americans eat, from Vidalia onions in Georgia to watermelons in Arizona to apples in Washington to the potatoes of southern Idaho.
“People aren’t coming across [the border] like they used to. There just isn’t the labor that there’s been before,” said Lodge. “There aren’t as many migrants that follow the work like they used to.” Lodge isn’t wrong; fewer farmworkers are crossing the border from Mexico, where nearly 70 percent of the United States’ ag workforce is from. But the reason for their absence in the orchards of her state is both less mysterious and more complicated than a shift in migrant work patterns.
Anti-immigration legislation in Idaho and many other states, particularly those emulating Arizona’s much contested S.B. 1070, has directly influenced the decrease in workers—workers the American agricultural system has depended on for years. As harsh laws that favor racial profiling and a zero-tolerance approach to undocumented immigrants grow in popularity, a mass exodus of laborers who fear deportation and discrimination is leaving ranchers and farmers in a bind. S.B. 1070 and its copycat counterparts enable the police to stop and demand the immigration status of any person they “reasonably suspect” may be in the country unlawfully—a practice that lends itself to rampant racial discrimination and affects far more than just agricultural workers. For politicians like Lodge, in the wake of such legislation, prison labor is the next-best option.
To others, this is a deeply disconcerting response that sidesteps the larger issue at hand. “There’s not a farm labor shortage; there’s a broken immigration system,” said Adrienne DerVartanian, director of immigration and labor rights at Farmworker Justice, a national advocacy organization based in Washington, D.C. “The solution is not to replace the current workforce but to give them the ability to work in agriculture.”
Farm labor is consistently ranked among the most dangerous occupations. Extreme temperatures, repetitive motion, and pesticide exposure are just a few of the health risks ag workers face daily. Furthermore, the National Labor Relations Act excludes farmworkers—both adults and children—from many protections guaranteed to employees in other industries. Child agricultural workers can legally work long hours that children in other industries cannot and can be paid as little as $4.25 an hour. Farmworkers are not entitled to overtime pay, in spite of the extreme hours they often put in, and some employers aren’t required to pay minimum wage.
The dangers of agricultural work are amplified for migrant guest workers, whose presence and employment in the United States often depend on their employer, such as those who come to the States under the H-2A temporary visa program. “That really sets up a scenario where the workers are really vulnerable to abuse and exploitation,” said DerVartanian. “Oftentimes [these] workers will work to the limits of human endurance in a way that workers who have other options and who understand the legal rights afforded to them simply won’t.”
Given what we know about the dangers of agricultural work for both U.S. citizens and guest workers—well documented by the Department of Labor’s Occupational Safety and Health Administration—the suggestion that prisoners should be next in line raises a red flag. Rather than improve wages and working conditions for farmworkers, which would be the logical response in many other sectors, legislators are suggesting that these risks simply be transferred to another population whose rights to safe working conditions are compromised by their lack of status in our society.
Beyond the health and safety risks prisoners face in the fields, the trend is a crystal-clear echo of an ugly chapter of American history that ended less than a century ago. The convict lease system was the post–Civil War response to another labor shortage: the end of slavery. Racist laws targeted and imprisoned freed black Americans, whose labor was then provided, for free, to private entities like—you guessed it—plantations. This thinly veiled system of slavery didn’t fully end until 1928.
When the Georgia Department of Corrections sent prisoners to harvest Vidalia onions in 2012 following the introduction of the state’s anti-immigration law, Edward O. Dubose, the president of the NAACP Georgia State Conference, called the practice “shocking and regressive.” The racial composition of today’s massive prison population reflects laws and policies, such as those ushered in by the war on drugs, that have disproportionately affected minorities. These laws particularly affect people of color. Black males have a one-in-three chance of being imprisoned in their lifetime, while black women are incarcerated in prison at a rate 2.5 times higher than that for white women. It’s not hard to deduce the predominant race of prisoners who may now be seen working in fields and orchards around the country.
When convict leasing ended in Georgia in 1908, the state’s government quickly replaced the lost workforce with prisoner chain gangs—yet another racially suspect practice that wasn’t abandoned until 1955. This racialized legacy of prison labor lives on in the Vidalia onion industry. Georgia consistently ranks in the top-five states with the highest incarceration rates, and 3.3 blacks are incarcerated for every white person.
For Lodge and like-minded legislators, drawing a parallel between now and then is a useless exercise. “Slaves don’t get paid,” she said laughing, when asked how she might respond to critics who point to history. But reducing the historical resonance with slave labor and convict leasing to a discussion of compensation overlooks both the ways in which prison laborers can easily be exploited and the fact that prisoners are disproportionately people of color. A private employer that hires prison laborers can pay them less than it pays other workers and need not be concerned with sick days, vacation time, or insurance. Prison workers can’t unionize to protect themselves and can’t effectively file workplace complaints. While Lodge is correct that these workers are getting paid, the comparisons to a “normal” workplace end there.
Depending on the state, part of a prisoner's wages is returned to the Department of Corrections, while more may go to victim restitution, court fees, and other debts. In the end, these workers see take-home pay that’s far less than minimum wage. In Lodge’s program, the starting wage is high—$15.48 per hour—but that’s before the same deductions are brought to bear. When all is said and done, agricultural labor is anything but a cash cow for prisoners.
Lodge also emphasizes the fact that her bill proposes a voluntary program, open to “low-risk” prisoners. Not all such programs are optional, including Georgia’s. For those that are, the concept of volunteering while incarcerated is not always as simple as it is outside prison walls. In some instances, those who refuse to work can be punished for their choice through deprivation of other resources, solitary confinement, or mistreatment by staff. In Arizona, prisoners who declined to “volunteer” to work at Martori Farms (a supplier of produce to Walmart) were punished with “disciplinary tickets” and shuttled off to another job. In some states, prisoner's labor (ag or non-ag) is rewarded with shortened sentences. In other words, refusing to work can result in more time behind bars.
When we spoke, Lodge stressed the rehabilitative value of this opportunity for Idaho prisoners. “Ninety-five percent [of prisoners] do get out, and they are given a better chance to come back into the community and become productive, accountable people,” she said. Some of the farmers Lodge spoke with before sponsoring S.B. 1374 told her they would happily employ prisoners who successfully worked for them after their release, a step toward reducing the probability that they would re-offend and wind up back in prison.
“We understand [Idaho has] a 53 percent recidivism rate, and these folks can’t get jobs when they get out. And not being able to get jobs causes them to get back into crime again,” said Lodge. The possibility of agricultural work for some prisoners post-incarceration is a welcome development, but this won’t change the fact that Idaho employers are legally welcome to consider past convictions when deciding whether or not to hire an applicant. These kinds of background checks impose formidable barriers to employment for many qualified applicants with past convictions and contribute to high recidivism rates like the one Lodge mentions. Many cities and local jurisdictions have successfully removed past convictions from employment applications via “ban the box” campaigns, increasing the likelihood that people with criminal records can find work in a range of industries—not just farmwork.
As corrections budgets are cut, rehabilitative programming is often the first to go, leaving many prisoners with few rewarding ways to pass the time. In a system often bereft of any kind of structured activities, it’s not hard to understand why some opt for programs like Lodge’s, which will begin in July. But should a punitive prison system that disproportionately ensnares people of color and offers only hard labor as “rehabilitation” really instill confidence in Americans? Benefits such as “fresh air” and “hard work” espoused by Lodge and other legislators may have merit, but agricultural labor simply can’t stand in for programs whose distinct focus is to improve people’s lives. Rather, a bill like S.B. 1374 will generate income for farmers, while a chance of rehabilitation lurks as a possible side effect.
Idaho’s apple orchards need not go unpicked. The suggestion that workers aren’t coming across the border like they used to neglects the reality that there is not a shortage of farmworkers but a shortage of documented farmworkers. Given an opportunity to work safely, with authorization and without fear of deportation, a lack of available agricultural labor would be unlikely.
“If there’s really a need for workers in the future, we would prefer for those workers to be offered a green card to come and work in the U.S., but also to be given the opportunity to become members of our society and our community,” said DerVartanian. “That is what’s much more reflective of American values and American history.”
In the meantime, as immigration reform languishes in Congress, state laws that evoke another part of our history seem to be favored.