Opponent: Denver East LF | Judge: Liyanage, Nethmin
AC- incarcerated workers nc- queer pess K abolish prison labor T case ar- condo AT 3 off case nr- T abolish prison labor (kinda kicked K) 2ar- 2 seconds on the K off case condo
Damus Hollywood Invitational
1
Opponent: Mountain View EN | Judge: Gentleman, Jonah
AC- Incarcerated Worker NC- T UnconditionalWorkers Case AR- Case T NR- T Case AR- T Case
Golden Desert Debate Tournament at UNLV
1
Opponent: Immaculate Heart RR | Judge: Halverson, Andrew
AC-Space Debris NC- 4 off AR- 4 off condo and pics theory case NR- 2 off theory case 2AR- theory case
Heart of Texas Invitation- St Marks
1
Opponent: Westwood AP | Judge: Johnson, Dillon
1AC- COVID NC- Consult CP China Innovation DA T Vaccines are not Medicines Case 1AR- Case Neg NR- Consult CP China Innovation DA Case 2AR- Case Consult CP China Innovation DA
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Cites
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AC
Tournament: Heart of Texas Invitation- St Marks | Round: 1 | Opponent: Westwood AP | Judge: Johnson, Dillon I. Vaccine Apartheid A TRIPS waiver for covid vaccines will not pass in the squo. Baschuk 7/26 Bryce Baschuk Reporter, Bloomberg Economics, 21 - ("WTO Holiday From Vaccine Equity Talks Draws Calls for Action," Bloomberg, 7-26-2021, accessed 8-18-2021, https://www.bloomberg.com/news/articles/2021-07-26/wto-s-holiday-from-vaccine-equity-talks-draws-calls-for-action)//ML An urgent global effort to rebalance the inequity between rich, vaccinated nations and poor nations sliding further into pandemic misery is colliding with an immovable calendar conflict: the European summer holiday. Next week World Trade Organization delegates are planning to depart Geneva for their August break and, in doing so, pause their fractious debate over a proposal to waive intellectual-property protections for Covid-19 shots until the second week of September.¶ Before they leave, members will adopt a report that acknowledges they’ve made scant headway on the proposal aimed at making doses more widely available, which the world’s top health expert says is critical to ending a “moral failure.”¶ “With so many lives on the line, profits and patents must come second,” World Health Organization Director-General Tedros Adhanom Ghebreyesus said during a virtual summit last week.¶ WTO Director-General Ngozi Okonjo-Iweala previously urged ambassadors to shorten their usual six-week summer holiday to focus on pressing issues like the waiver. Nevertheless, members aren’t planning to reconsider the matter until the week of Sept. 6, according to officials familiar with the planning.¶ “August doesn’t matter in Geneva; it doesn’t matter if people are dying around the world,” said Shailly Gupta, a spokesperson at Médecins Sans Frontières. “We hope members will move at a faster pace.”¶ Disagreement persists on the fundamental question of whether a waiver is the “appropriate and most effective way” to address the shortage of vaccines, according to a draft status report produced by Dagfinn Sørli, the chairman of WTO council on Trade-Related Aspects of Intellectual Property Rights, or TRIPS.¶ That split could sink prospects for an ambitious vaccine waiver because WTO decisions must be taken on the basis of consensus -- which means any of the 164 members can veto a final agreement for any reason.¶ ”The WTO’s response to Covid is the most critical issue before our organization right now,” WTO spokesman Keith Rockwell said a phone interview. “Millions have died and lives are at stake. Finding a pragmatic outcome by December is essential.”¶ Proponents of the waiver had hoped to conclude their negotiations by the end of July and are now criticizing the European Union and other developed nations for sandbagging the talks.¶ EU ‘Not Interested’¶ The European Commission, which opposes a WTO TRIPS waiver, has proposed a series of measures that it argues will create greater legal certainty for nations to leverage existing trade tools in order to expand their production capacities.¶ “The EU is not interested,” Gupta said. “Switzerland, Norway and the United Kingdom are not engaging. They’re saying: ‘This or that won’t work; the waiver won’t work.’ There is no intention of engaging.”¶ A spokesman for the EU mission in Geneva declined to comment.§ Critics counter that the proposal from Brussels is a distraction to redirect focus from India and South Africa’s earlier waiver proposal and to prevent members from engaging in more detailed negotiations.¶ “The EU’s actions are incredibly cynical and dangerous,” said Lori Wallach, the founder of Public Citizen’s Global Trade Watch. “They have submitted a paper that basically conflicts with the text-based negotiations by saying ‘We don’t want a waiver.’”¶ The U.S., meanwhile, has taken a back seat in the process and enthusiasm about Washington’s engagement on the issue has begun to wane in the three months since Trade Representative Katherine Tai announced American support for a waiver.¶ Though Tai’s surprise announcement briefly knocked shares of Moderna Inc., Pfizer Inc., and BioNTech SE, the stocks quickly rebounded and all are now trading at or near their highest levels of the year.¶ “People feel that message from Ambassador Tai is not playing out on the ground or being implemented in a meaningful way,” said Thiru Balasubramaniam a managing director at Knowledge Ecology International in Europe. The only way to solve the pandemic is global vaccination, but current production is woefully short. Public Citizen 3/29 - Public Citizen “Public Citizen is a nonprofit consumer advocacy organization that champions the public interest in the halls of power. We defend democracy, resist corporate power and work to ensure that government works for the people – not for big corporations. Founded in 1971, we now have 500,000 members and supporters throughout the country. We don’t participate in partisan political activities or endorse any candidates for elected office. We take no government or corporate money, which enables us to remain fiercely independent and call out bad actors – no matter who they are or how much power and money they have.”, “Waiver of the WTO’s Intellectual Property Rules: Facts vs. Common Myths,” Public Citizen Global Trade Watch Series. March 29, 2021. Accessed Aug. 10, 2021. https://www.citizen.org/article/waiver-of-the-wtos-intellectual-property-rules-myths-vs-facts/ AT The COVID-19 public health disaster and resulting economic crises won’t end anywhere unless people everywhere are vaccinated. Despite this obvious truth, rich countries with only 14 of the global population have secured preferential access to over 50 of projected global vaccine supplies. Ongoing outbreaks anywhere allow the virus to mutate, threatening the whole world with vaccine-resistant variants or more deadly or easily spread variants. Governments invested billions to create the vaccines. But, there is a dire shortage, with no end in sight. As we enter the second quarter, about one billion doses have been produced in 2021. We need 10 to 12 billion to reach global herd immunity. And we will need far more if, like flu vaccines, they must be repeated or require booster shots. In every region, there are existing firms that could gear up production and governments willing to invest in expanding supply. But WTO rules require countries to guarantee pharmaceutical corporations monopoly control. More than 100 countries support a temporary, emergency suspension of these WTO rules, so more vaccines, treatments and diagnostic tests can be manufactured in as many places as possible. The United States and a handful of other WTO members are blocking the waiver: They won’t even agree to negotiate about waiver language to address whatever concerns that they may have with the current text. Donald Trump started this self-defeating blockade. President Joe Biden must reverse it to speed the end of the COVID-19 pandemic. Changing IP laws is key to combatting global health inequality and vaccine apartheid. Rich countries hoard vaccine supply, which means donor models never solve and reinforce colonialism. Harman et al 6/21 Sophie Harman professor of Politics and International Relations, Queen Mary University of London, Parsa Erfani Fogarty Global Health Fellow at the University of Global Health Equity and a medical student at Harvard Medical School, Tinashe Goronga Community Organiser Equal Health Global Campaign Against Racism at EqualHealth, Jason Hickel, Michelle Morse, Eugene T Richardson 6/21 - ("Global vaccine equity demands reparative justice — not charity," BMJ Global Health, 6/21/2021, https://gh.bmj.com/content/6/6/e006504)//ML By late April, more than 80 of the world’s COVID-19 vaccines had gone to people in wealthy countries, with just 0.3 to people in low-income countries.1 This reprehensible imbalance is no accident. High-income countries have used neocolonial negotiating power, global policy leverage and capital to procure enough doses to cover 245 of their citizens while leaving few doses for poorer countries.2 As a result, lower-income countries may not be able to vaccinate their populations until 2023.3¶ Such inequity is yet another example of how the interests of racial capitalism run roughshod over the golden rule of global solidarity—attend to the highest risk first.4 Currently, older and medically vulnerable individuals are dying from COVID-19 disproportionately in poor countries, while young, healthy individuals are getting vaccinated in wealthy ones.5 Vaccine apartheid is a not novel phenomenon. The notion that only certain corners of the world get to benefit from life-saving treatments is an everyday reality of a global health system driven by a capitalist, philanthropic model.6 7 But in times of crises—and as new variants threaten the vaccination plans of wealthy countries—these inequities and their solutions come to the forefront of global debate.8¶ Policy-makers in rich nations are aware of these issues. But the solutions they have proposed so far do nothing to address the underlying structural problems. They offer charitable donations and partial, temporary fixes that are designed to deflect the substantive demands for reform that global South countries are fighting for, including challenges to unethical intellectual property (IP) regimes.9 This approach will not work, because it is not designed to ‘work.’ If we want to end vaccine apartheid, we need to target the root causes of global health inequities. We need reparative justice.¶ Three limited ‘solutions’ to vaccine inequity¶ There are currently three approaches to reduce inequity in COVID-19 vaccine distribution: bilateral charity, multilateral charity and temporary waivers or suspensions of IP.¶ The first is the most straightforward. States that stockpile COVID-19 vaccines have committed to sharing their leftovers with low-income and middle-income countries. Norway was one of the first nations to accede to donating doses to poorer countries in parallel with its vaccine programme.10 This is the weakest form of equity as it is unclear if this will be done for free, at a lower cost, tied to diplomacy or conditionality, or crucially, when these vaccines will be made available, where they will go, or how many will be delivered. The bilateral charity approach has little to do with equity and more to do with geopolitics, wealth and aid dependency.11 12¶ The second is multilateral charity, best exemplified by COVAX. In 2020, COVAX emerged as an international collaboration by the World Health Organisation (WHO), United Nations Children’s Fund, Gavi and the Coalition for Epidemic Preparedness Innovations to ensure equitable global access to COVID-19 vaccines.13 Rich countries can access doses for 10–50 of their populations, depending on how much they have paid in, and poor countries can access doses for 20 through the scheme. It is the 20 for poor countries that has come to be COVAX’s unique selling point: here is a mechanism that ensures every country in the world can get the vaccine regardless of ability to pay. This is the first time such an initiative has been trialled.¶ The shortcomings of COVAX are numerous. If vaccines are delivered as planned, COVAX may reach 27 of the population in lower-income countries by the end of 2021—a depressing goal compared with the estimated 70 coverage needed for herd immunity and the open vaccine access currently granted to Americans.14 15 Furthermore, COVAX is still significantly underfunded and there are concerns regarding supply chains. While capital and resource transfer from wealthy countries to poorer ones is surely needed in the current pandemic response, any system that solely relies on aid will ultimately fail to achieve equity. In the setting of vaccine scarcity, in which suppliers are unable to deliver doses as scheduled and countries are banning exports to keep vaccines at home, there is a risk that COVAX aid-recipient states will fall further down the priority list, awaiting the leftover vaccines from the rich country stockpiles.16–18¶ What may be most pernicious about the COVAX scheme, however, is that rich countries and their pharmaceutical companies have repeatedly used it as a shield to deflect demands for IP waivers. This is an enduring problem with aid: it papers over and distracts our attention away from the underlying structural violence. And in so doing, it maintains and perpetuates inequalities. Over 50 years ago, Kwame Nkrumah observed how aid is a ‘revolving credit’ which returns to countries of the global North in the form of increased profits.19 To the extent that COVAX is being leveraged to protect corporate patents and profits, Nkrumah’s words continue to be germane¶. The third approach is focused on pooling, temporary waivers, or suspension of IP. In May 2020, the WHO created the COVID-19 Technology Access Pool for companies to share IP and transfer technologies in a coordinated manner. But to date, not a single company has utilised the transfer process—likely because such forms of global IP sharing would quell profits, even if royalties are included.20 Pharmaceutical companies and universities prefer one-off transfer deals because it enables them to set their own terms with non-disclosure agreements. Given that they are accountable to shareholders and boards—not patients—financial incentives will drive transfer decisions, not public health demand.¶ Following the blockages at the WHO around IP, attention shifted towards the World Trade Organisation (WTO). In October 2020, India and South Africa proposed a temporary waiver of IP rights to COVID-19 technologies for the duration of the pandemic, so that all manufacturers with sufficient capacity and shared know-how could start production.21 Although backed by over 100 countries within the WTO and a global campaign for the ‘People’s Vaccine,’ the proposal has been repeatedly blocked at every committee meeting since then by select wealthy countries with large pharmaceutical industries, including the UK, Japan and EU states.22 23¶ Those who oppose the IP waiver argue that it will not do anything to solve the problem: even if you were to liberate the recipe for the vaccines, low-income and middle-income countries do not have the capacity to produce it.24 But this argument is specious. For one, several middle-income countries—including India, Brazil, Senegal and South Africa—do have the ability to ramp up production by repurposing existing manufacturing capacity.25 In addition, an IP waiver can and should be supplemented with technology transfers, logistical support and financial investment to facilitate this repurposing process. And the most important point is that such a waiver could drastically reduce costs across the board, making vaccine imports more affordable for poor countries.¶ Opponents of the waiver also claim that IP-related obstacles can be addressed through existing arrangements for ‘compulsory licensing’ under the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).26 But the past evidence suggests that this process is slow, cumbersome and subject to various shaming practices by the international community.27 28 Some point instead to the possibility of voluntary licensing. But voluntary licenses are often executed secretly and are limited to companies or governments that can afford them. The University of Pennsylvania, which owns IP rights relating to the mRNA vaccines, is helping Chulalongkorn University in Bangkok develop a vaccine production facility. This partnership was possible because Thailand—unlike other middle-income countries—was able to put up the money.29 Poorer countries are left out. Sharing of IP and technology transfers can and will accelerate global vaccine production. The question is on whose terms. Organisations such as the WHO and African Union are currently mobilising support and resources to accelerate production in low-income and middle-income countries.30 31 But these efforts will be to waste unless IP for COVID-19 technologies is shared broadly and quickly.¶ Vaccine coloniality¶ Donor-based approaches to vaccine equity are grounded in old, even colonial ideas of aid and dependency, which have failed to serve the health needs of the Majority World or deliver on health equity. This failed model has not promoted health equity in the past and is clearly inadequate in the present, on account of dependency on donor whims (the bilateral ‘leftovers’ approach), persistent funding gaps and shortfalls (COVAX), and time-consuming diplomacy and filibustering over what is or is it not within current trade rules (WTO).¶ Once again in the political economy of global health, the charitable model of COVAX becomes the smokescreen for inequitable systems. When states are asked about their stockpiling, they point to COVAX. When pharmaceutical companies are asked about IP, they point to COVAX or their low-cost commitment. The focus on a donor-based model of aid in achieving vaccine equity has distracted leaders from the ideologies, economic systems and trade regulations that leave access to medicine to the forces of the marketplace rather than global health priorities.32 Achieving global vaccine justice requires a rapid shift in trade regulations and contract transparency that streamlines IP sharing and technology transfers. The resultant collaborations across economies will not only accelerate vaccine production but will also increase competition and push vaccine prices down.¶ Finally, old models of vaccine equity have not kept pace with changes in discourse and thinking around global health governance, equity and justice. 2021 is not the early 2000s, where new public–private partnerships or funding models were de rigueur. Donor countries are increasingly wary of aid dependency as they pay the cost of continuing high profile health programmes with diminishing strategic returns. Aid-recipient countries are similarly exasperated by funding gaps that lead to delays and materiel shortfalls, the NGO-industrial complex and attendant consultants that rationalise them, and fundamentally, by the notion that their populations only seem to matter when another state can capitalise on them.¶ Conclusion¶ Vaccine apartheid is only one symptom of broader global health inequalities that have their roots in colonialism and persist today because of neocolonial forms of power. As Grosfoguel writes, ‘The heterogeneous and multiple global structures put in place over a period of 450 years did not evaporate with the juridical–political decolonisation of the periphery over the past 50 years. We continue to live under the same ‘colonial power matrix.’ With juridical–political decolonisation we moved from a period of ‘global colonialism’ to the current period of ‘global coloniality.’33 Vaccine justice starts with moving beyond aid models of vaccine donation, in which poorer countries are gifted vaccine leftovers. It demands rapidly achieving global consensus for the IP waiver, democratising vaccine IP and know-how and supporting low-income and middle-income countries to build manufacturing capacity for this pandemic and the next. These steps can mark the start of a reparative justice movement in global health that demands we confront and overturn colonial legacies that continue to devastate the health of low- and middle-income countries.34 A commitment to funding vaccine justice in the face of the COVID-19 pandemic can be a first step in this direction. Compulsory licensing is not sufficient – drug company resistance, IP thickets, and devolved decision-making. Stiglitz and Wallach 4/26 - Joseph E. Stiglitz and Lori Wallach Joseph E. Stiglitz, co-recipient of the 2001 Nobel Memorial Prize in Economics Sciences, teaches at Columbia University. Lori Wallach is the director of Public Citizen’s Global Trade Watch., “Opinion: Preserving intellectual property barriers to covid-19 vaccines is morally wrong and foolish,” Washington Post (Web). April 26, 2021. Accessed Aug. 10, 2021. https://www.washingtonpost.com/opinions/2021/04/26/preserving-intellectual-property-barriers-covid-19-vaccines-is-morally-wrong-foolish/ AT Unfortunately, the drug companies have consistently done whatever they can to preserve their monopoly control. Even today, as they battle the waiver and argue that existing compulsory licensing rights are sufficient, they lobby the U.S. government to sanction countries that use that tool.¶ These corporations have also undermined this option by building “thickets” of intellectual property barriers. They fortify their monopolies by registering exclusive rights to industrial designs and undisclosed data, such as trade secrets and test data, in addition to numerous patents and copyrights for each medicine. Each element would require a license, and the WTO’s flexibilities might not even encompass all of them.¶ Making matters more difficult, “product-by-product” and “country-by-country” compulsory licensing is nigh impossible to coordinate across countries for medicines with complex global supply chains, such as covid-19 vaccines. Vaccine shortfall causes widespread death and poverty. Public Citizen 3/1 - Public Citizen “Public Citizen is a nonprofit consumer advocacy organization that champions the public interest in the halls of power. We defend democracy, resist corporate power and work to ensure that government works for the people – not for big corporations. Founded in 1971, we now have 500,000 members and supporters throughout the country. We don’t participate in partisan political activities or endorse any candidates for elected office. We take no government or corporate money, which enables us to remain fiercely independent and call out bad actors – no matter who they are or how much power and money they have.”, “Backgrounder: WTO-Required Monopolies for Pharmaceutical Corporations Obstruct Global Production of COVID-19 Vaccines and Treatment,” Public Citizen Global Trade Watch Series. March 1, 2021. Accessed Aug. 12, 2021. https://www.citizen.org/article/wto-required-monopolies-for-pharmaceutical-corporations-obstruct-global-production-of-covid-19-vaccines-and-treatments/ AT It is obvious that current production capacity cannot supply enough vaccines for the entire world. Many people in low- and middle-income countries around the globe will not get vaccinated until at least 2022 unless the world manufactures many more doses, according to the British Medical Journal. The world’s poorest countries may wait until 2024 for mass immunization, if it happens at all, reports the Economist Intelligence Unit. The global vaccine apartheid unfolding right now could cost millions of lives and push tens of millions more into poverty. The devastation will be felt for a generation. A new International Chamber of Commerce report concluded that the world could face economic losses of more than $9 trillion under the scenario of wealthy nations being fully vaccinated by mid-2021, but poor countries largely shut out. Wealthy countries like the United States would bear nearly half of that hit. Vaccinating just half of low- and middle-income countries’ populations could reduce global losses by $5.5 trillion. Poverty and disease are mutually reinforcing, causing staggering suffering and injustice. Hollis and Pogge ’08 - Aidan Hollis Associate Professor of Economics, the University of Calgary and Thomas Pogge Leitner Professor of Philosophy and International Affairs, Yale University, “The Health Impact Fund Making New Medicines Accessible for All,” Incentives for Global Health (2008) AT In 2004, some 970 million people, around 15 percent of the world’s population, were living below the extreme poverty line of $1 a day (more strictly defi ned, $392.88 annually) in 1993 Purchasing Power Parity (PPP) terms (Chen and Ravallion 2007, 16579).3 Furthermore, those living below this very low poverty line fell on average around 28 percent below it. Th eir average annual purchasing power therefore corresponded to approximately $420 in the US in 2008 dollars.4¶ Th ese are the poorest of the poor. Th e World Bank also uses a somewhat less miserly poverty line, namely $2 dollar a day, or an annual amount of $785.76 PPP 1993. Th e Bank’s data show that around 40 percent of the world’s population, or over 2.5 billion people, lived in income poverty so defi ned in 2004,5 with this population falling on average 41 percent below this higher line.6 Individuals I;\pp
\n this much larger group could buy, on average, about as much in 2004 as could be bought in the US in 2008 for $690.¶ The Effects of Global Income Poverty on Health¶ The effects of such extreme income poverty are foreseeable and extensively documented. It is estimated that around 13 percent of all human beings (830 million) are chronically undernourished, 17 percent (1.1 billion) lack access to safe water, and 41 percent (2.6 billion) lack access to basic sanitation (UNDP 2006, 174, 33). About 31 percent (2 billion) lack access to crucial drugs and 25 percent (1.6 billion) lack electricity (Fogarty n.d., IEA 2002). Some 780 million adults are illiterate (UNESCO 2006), and 14 percent of children aged between fi ve and 17 (218 million) are child laborers, more than half in hazardous work (ILO 2006, 6).¶ Worldwide, diseases related to poverty, including communicable, maternal, perinatal, and nutritionrelated diseases, comprise over 50 percent of the burden of disease in low-income countries, nearly ten times their relative burden in developed countries (WHO 2006b, 3). If the developed world had its proportional share of poverty-related deaths (onethird of all deaths), severe poverty would kill some 16,000 Americans and 26,000 citizens of the European Union each week.¶ The cycle of mutually reinforcing poverty and disease besetting low income countries, and particularly the poorer communities in these countries, could be broken by signifi cantly reducing severe poverty. But it is also possible to make substantial progress against the global burden of disease more directly by improving health care in developing countries.¶ Poverty does not merely render poor people more vulnerable to disease, but also makes it less likely that they can obtain medical treatment for the diseases they contract. This is because in poor countries medical care is rarely available for free, and poor people are typically unable to buy either the care needed by themselves or their families or the insurance policies that would guarantee them such care. The price of health care in poor countries therefore also plays a crucial role in explaining the catastrophic health situation among the global poor.
II. Solvency Plan text: The member nations of the World Trade Organization ought to waive intellectual property protections for Covid-19 related medicines. Public Citizen 6/22 - Public Citizen et. al, “Please Speedily Secure Implementation of a COVID-19 Emergency Waiver of WTO TRIPS Rules for Vaccines, Tests and Treatments,” Open Letter to President Joe Biden. June 22, 2021. https://www.citizenstrade.org/ctc/wp-content/uploads/2021/06/COVIDTRIPSWaiver_SignOnLtr2_062221.pdf#new_tab AT We the undersigned organizations respectfully urge you to speedily secure a waiver that is:¶ • Comprehensive: The U.S. government must secure swift adoption of a temporary waiver of the patent, copyright, industrial design and undisclosed data rules of the WTO’s TRIPS Agreement with respect to COVID-19-related medical products. The scope of the waiver must extend beyond vaccines to also cover the diagnostic tests needed to detect outbreaks and variants; the treatments, ventilators and other medical devices necessary to shorten lockdowns and save the lives of the millions who will contract COVID-19 before sufficient vaccine doses can be made and the materials, components, means and methods of manufacturing such goods.¶ • Swift: The WTO Director General’s December 2021 deadline for a final waiver text is far too late to meet the urgency of the pandemic, which requires agreement on a waiver in a matter of weeks, not months.¶ • Long-lasting: A waiver must be of sufficient duration to incentivize and sustain increases in manufacturing capacity for and output of medical goods to prevent, contain or treat COVID19, taking into consideration that the pandemic may yet escape current vaccines. We support the waiver sponsors’ proposal that the initial waiver last three years and be regularly reviewed thereafter, particularly given uncertainties around variants, the need for boosters, and what levels of immunization may be needed.¶ Current global production capacity of COVID-19 vaccines, medicines, and diagnostic tests cannot come close to meeting global needs to detect, treat, prevent, or contain COVID-19. Absent significant increases in vaccine production, many in developing nations will not have access to vaccines until 2024. This lag would mean more deaths and the greater chances for development of new variants that can undermine vaccines' achievements to date.¶ Every country should have the right to develop and make their own vaccines free from the worry that they and their suppliers would be sued by IP holders. To date, vaccine intellectual property rightsholders have refused to issue open licenses under transparent and accountable terms and conditions, and transfer technology fully to and negotiate payment terms with qualified manufacturers in Africa, Asia, and Latin America, creating supply shortages and production bottlenecks and prohibiting urgently needed production of doses worldwide. The worst global health crisis in a century has resulted in at least 3.5 million deaths worldwide and is conservatively estimated to cost the U.S. alone $16 trillion in economic losses, accompanied by yet greater global losses that have impoverished hundreds of millions of people worldwide. We are in a race against time to save lives and prevent new variants. Absent a major increase in vaccines, treatments, diagnostic tests, ventilators, and other COVID-19-related medical supplies, the pandemic will rage largely unmitigated among a significant share of the world’s population. COVID-19 infections will increase, resulting in increased deaths and long-term damage to the health of millions of people, a dragging blow to the global economy and a risk that vaccine-resistant variants will put the world back on lockdown and evade immunity for those previously infected and/or vaccinated. The long-term impact on people’s health and the world’s health system would be unprecedented. A waiver would increase leverage over pharma and provide legal certainty needed to spur critical production. Stiglitz and Wallach 4/26 - Joseph E. Stiglitz and Lori Wallach Joseph E. Stiglitz, co-recipient of the 2001 Nobel Memorial Prize in Economics Sciences, teaches at Columbia University. Lori Wallach is the director of Public Citizen’s Global Trade Watch., “Opinion: Preserving intellectual property barriers to covid-19 vaccines is morally wrong and foolish,” Washington Post (Web). April 26, 2021. Accessed Aug. 10, 2021. https://www.washingtonpost.com/opinions/2021/04/26/preserving-intellectual-property-barriers-covid-19-vaccines-is-morally-wrong-foolish/ AT A waiver would immediately increase government leverage over vaccine makers that refuse to license the technology. Firms could choose to either expand production by negotiating with governments, alternative suppliers and global initiatives, or risk governments circumventing them and forcing the transfer of technology.¶ A waiver would also provide legal certainty for governments and investors that are inclined to repurpose existing pharmaceutical manufacturing or build new facilities but are fearful of intellectual property liability. And it could boost production of covid-19 treatments unavailable in much of the world, as well as diagnostic tests and vaccine supply chain products. Legal certainty unlocks global production. Public Citizen 3/29 - Public Citizen “Public Citizen is a nonprofit consumer advocacy organization that champions the public interest in the halls of power. We defend democracy, resist corporate power and work to ensure that government works for the people – not for big corporations. Founded in 1971, we now have 500,000 members and supporters throughout the country. We don’t participate in partisan political activities or endorse any candidates for elected office. We take no government or corporate money, which enables us to remain fiercely independent and call out bad actors – no matter who they are or how much power and money they have.”, “Waiver of the WTO’s Intellectual Property Rules: Facts vs. Common Myths,” Public Citizen Global Trade Watch Series. March 29, 2021. Accessed Aug. 10, 2021. https://www.citizen.org/article/waiver-of-the-wtos-intellectual-property-rules-myths-vs-facts/ AT Most critically, there simply is not enough supply to go around now or for every year in the future during which the whole world will need regular COVID vaccination to keep the virus under control. Thankfully, scores of countries are ready to invest in building new or repurposing existing production capacity. That is why more than 100 countries support a waiver of the WTO’s Agreement on Trade-Related Aspects of Intellectual Property (TRIPS). These countries seek certainty that if they adjust their domestic laws and practices to support that investment by providing access to the necessary technology, they will not get dragged into expansive WTO litigation or face retaliatory sanctions from countries claiming WTO violations. The waiver will also serve as a worldwide buffer against the political pressure and legal harassment to which Big Pharma subjects countries that seek to promote affordable access to medicines.¶ In many countries, the regulatory authorities that had to approve domestic use of various vaccines and other COVID-related medical products have significant information from the firms that they could share with skilled teams from local universities, government agencies and pharmaceutical manufacturers — if they were not obliged by WTO rules to guarantee monopoly control of it. And world-class pharmaceutical firms already are making generic versions of new cutting-edge HIV-AIDS medicines and pumping out vaccines based on the platform that, for instance, the Johnson and Johnson vaccine uses. Manufacturing capacity is widespread around the world. Public Citizen 3/29 - Public Citizen “Public Citizen is a nonprofit consumer advocacy organization that champions the public interest in the halls of power. We defend democracy, resist corporate power and work to ensure that government works for the people – not for big corporations. Founded in 1971, we now have 500,000 members and supporters throughout the country. We don’t participate in partisan political activities or endorse any candidates for elected office. We take no government or corporate money, which enables us to remain fiercely independent and call out bad actors – no matter who they are or how much power and money they have.”, “Waiver of the WTO’s Intellectual Property Rules: Facts vs. Common Myths,” Public Citizen Global Trade Watch Series. March 29, 2021. Accessed Aug. 10, 2021. https://www.citizen.org/article/waiver-of-the-wtos-intellectual-property-rules-myths-vs-facts/ AT In the press and on Capitol Hill, Big Pharma is pushing a Big Lie. The claim is that a lack of manufacturing capacity, not pharmaceutical corporation’s monopoly intellectual property (IP) protections, are thwarting greater production of COVID-19 vaccines. A related argument, with decidedly racist overtones, is that COVID-19 vaccines are too complicated for producers in developing countries to make successfully. The reality is that in every region of the world, there are multiple producers that could be greatly increasing global vaccine supplies if the technology and know-how were shared.¶ Just in Africa, “Biovac and Aspen in South Africa, Institute Pasteur in Senegal, and Vacsera in Egypt could rapidly retool factories to make mRNA vaccines,” notes a group of medicine-production experts in a recent Foreign Policy article. Indeed, a former Moderna director of chemistry revealed that with enough technology transfer and know- how-sharing, a modern factory should be able to get mRNA vaccine production online in, at most, three to four months. The Serum Institute in India already is slated to produce the AstraZeneca and Novavax vaccines, while Moderna declined to partner with a qualified Bangladeshi vaccine maker, claiming its engineers were too busy to focus beyond U.S. and EU production. In Latin America, existing facilities in Brazil, Argentina and Mexico under contract to monopoly holders are already pumping out vials, and in countries like Chile and Colombia, the pharmaceutical industry has expressed willingness to kickstart vaccine production.¶ Existing and planned contract manufacturing arrangements prove facilities in developing countries certainly can produce COVID-19 vaccines. But unless technology and know-how are shared more openly, the monopoly holders maintain absolute control over how much can be produced, what the price is and where it will be sold. So, 91 of the Johnson and Johnson vaccine that South African firm Aspen will manufacture must be shipped for sale outside South Africa, according to South Africa’s WTO Counselor. And the Serum Institute is barred from supplying upper- middle-income and high-income countries with the AstraZeneca vaccines it makes, meaning AstraZeneca can artificially segment the global market and ensure that it is the only supplier of the Oxford vaccine in the most profitable national markets, according to Doctors Without Borders.¶ Most critically, there simply is not enough supply to go around now or for every year in the future during which the whole world will need regular COVID vaccination to keep the virus under control. Thankfully, scores of countries are ready to invest in building new or repurposing existing production capacity. That is why more than 100 countries support a waiver of the WTO’s Agreement on Trade-Related Aspects of Intellectual Property (TRIPS). These countries seek certainty that if they adjust their domestic laws and practices to support that investment by providing access to the necessary technology, they will not get dragged into expansive WTO litigation or face retaliatory sanctions from countries claiming WTO violations. The waiver will also serve as a worldwide buffer against the political pressure and legal harassment to which Big Pharma subjects countries that seek to promote affordable access to medicines.¶ In many countries, the regulatory authorities that had to approve domestic use of various vaccines and other COVID-related medical products have significant information from the firms that they could share with skilled teams from local universities, government agencies and pharmaceutical manufacturers — if they were not obliged by WTO rules to guarantee monopoly control of it. And world-class pharmaceutical firms already are making generic versions of new cutting-edge HIV-AIDS medicines and pumping out vaccines based on the platform that, for instance, the Johnson and Johnson vaccine uses. III. Framing The Aff challenges dehumanizing cultural frames that allow us to ignore human suffering. Recognition of common vulnerability is key to a politics that rejects violence, oppression, and indifference. Butler ’04 - Judith Butler Prof. of Rhetoric and Comparative Literature, University of California at Berkeley, Precarious Life: The Powers of Mourning and Violence. New York: Verso (2006; First Published 2004). pp. 30-35 AT Is there something to be gained from grieving, from tarrying with grief, from remaining exposed to its unbearability and not endeavoring to seek a resolution for grief through violence? Is there something to be gained in the political domain by maintaining grief as part of the framework within which we think our international ties? If we stay with the sense of loss, are we left feeling only passive and powerless, as some might fear? Or are we, rather, returned to a sense of human vulnerability, to our collective responsibility for the physical lives of one another? Could the experience of a dislocation of First World safety not condition the insight into the radically inequitable ways that corporeal vulnerability is distributed globally? To foreclose that vulnerability, to banish it, to make ourselves secure at the expense of every other human consideration is to eradicate one of the most important resources from which we must take our bearings and find our way.¶ To grieve, and to make grief itself into a resource for politics, is not to be resigned to inaction, but it may be understood as the slow process by which we develop a point of identification with suffering itself. The disorientation of grief- “Who have I become?” or, indeed, “What is left of me?” “What is it in the Other that I have lost?” – posits the “I” in the mode of unknowingness.¶ But this can be a point of departure for a new understanding if the narcissistic preoccupation of melancholia can be moved into a consideration of the vulnerability of others. Then we might critically evaluate and oppose the conditions under which certain human lives are more vulnerable than others, and thus certain human lives are more grievable than others. From where might a principle emerge by which we vow to protect others from the kinds of violence we have suffered, if not from an apprehension of a common human vulnerability? I do not mean to deny that vulnerability is differentiated, that it is allocated differentially across the globe. I do not even mean to presume upon a common notion of the human, although to speak in its “name” is already (or perhaps only) to fathom its possibility.¶ I am referring to violence, vulnerability, and mourning, but there is a more general conception of the human with which I am trying to work here, one in which we are, from the start, given over to the other, one in which we are, from the start, even prior to individuation itself and, by virtue of bodily requirements, given over to some set of primary others: this conception means that we are vulnerable to those we are too young to know and to judge and, hence, vulnerable to violence; but also vulnerable to another range of touch, a range that includes the eradication of our being at the one end, and the physical support for our lives at the other.¶ Although I am insisting on referring to a common human vulnerability, one that emerges with life itself, I also insist that we cannot recover the source of this vulnerability: it precedes the formation of the “I.” This is a condition, a condition of being laid bare from the start and with which we cannot argue. I mean, that we can argue with it, but we are perhaps foolish, if not dangerous, when we do. I do not mean to suggest that the necessary support for a newborn is always there. Clearly, it is not, and for some this primary scene is a scene of abandonment or violence or starvation, that theirs are bodies given over to nothing, or to brutality, or to no sustenance.¶ We cannot understand vulnerability as a deprivation, however, unless we understand the need that is thwarted. Such infants still must be apprehended as given over, as given over to no one or to some insufficient support, or to an abandonment. It would be difficult, it not impossible, to understand how humans suffer from oppression without seeing how this primary condition is exploited and exploitable, thwarted and denied. The condition of primary vulnerability, of being given over to the touch of the other, even if there is no other there, and no support for our lives, signifies a primary helplessness and need, one to which any society must attend. Lives are supported and maintained differently, and there are radically different ways in which human physical vulnerability is distributed across the globe. Certain lives will be highly protected, and the abrogation of their claims to sanctity will be sufficient to mobilize the forces of war. Other lives will not find such fast and furious support and will not even qualify as “grievable.”¶ A hierarchy of grief could no doubt be enumerated. We have seen it already, in the genre of the obituary, where lives are quickly tidied up and summarized, humanized, usually married, or on the way to be, heterosexual, happy, monogamous. But this is just a sign of another differential relation to life, since we seldom, if ever, hear the names of the thousands of Palestinians who have died by the Israeli military with United States support, or any number of Afghan people, children and adults. Do they have names, faces, personal histories, family, favorite hobbies, slogans by which they life? What defense against the apprehension of loss is at work in the blithe way in which we accept deaths caused by military means with a shrug or with self-righteousness or with clear vindictiveness? To what extent have Arab peoples, predominantly practitioners of Islam, fallen outside the “human” as it has been naturalized in its “Western” mold by the contemporary workings of humanism? What are the cultural contours of the human at work here? How do our cultural frames for thinking the human set limits on the kinds of losses we can avow as loss? After all, if someone is lost, and that person is not someone, then what and where is the loss, and how does mourning take place?¶ This last is surely a question that lesbian, gay, and hi-studies have asked in relation to violence against sexual minorities; that transgendered people have asked as they are singled out for harassment and sometimes murder; that intersexed people have asked, whose formative years are so often marked by unwanted violence against their bodies in the name of a normative notion of the human, a normative notion of what the body of a human must be. This question is no doubt, as well, the basis of a profound affinity between movements centering on gender and sexuality and efforts to counter the normative human morphologies and capacities that condemn or efface those who are physically challenged. It must also be part of the affinity with anti-racist struggles, given the racial differential that undergirds the culturally viable notions of the human, ones that we see acted out in dramatic and terrifying ways in the global arena at the present time.¶ I am referring not only to humans not regarded as humans, and thus to a restrictive conception of the human that is based upon their exclusion. It is not a matter of a simple entry of the excluded into an established ontology, but an insurrection at the level of ontology, a critical opening up of the questions, What is real? Whose lives are real? How might reality be remade? Those who are unreal have, in a sense, already suffered the violence of derealization. What, then, is the relation between violence and those lives considered as "unreal"? Does violence effect that unreality? Does violence take place on the condition of that unreality?¶ If violence is done against those who are unreal, then, from the perspective of violence, it fails to injure or negate those lives since those lives are already negated. But they have a strange way of remaining animated and so must be negated again (and again). They cannot be mourned because they are always already lost or, rather, never "were," and they must be killed, since they seem to live on, stubbornly, in this state of deadness. Violence renews itself in the face of the apparent inexhaustibility of its object. The derealization of the "Other" means that it is neither alive nor dead, but interminably spectral. The infinite paranoia that imagines the war against terrorism as a war without end will be one that justifies itself endlessly in relation to the spectral infinity of its enemy, regardless of whether or not there are established grounds to suspect the continuing operation of terror cells with violent aims.¶ How do we understand this derealization? It is one thing to argue that first, on the level of discourse, certain lives are not considered lives at all, they cannot be humanized, that they fit no dominant frame for the human, and that their dehumanization occurs first, at this level, and that this level then gives rise to a physical violence that in some sense delivers the message of dehumanization that is already at work in the culture. It is another thing to say that discourse itself effects violence through omission. If 2oo,ooo Iraqi children were killed during the Gulf War and its aftermath/ do we have an image, a frame for any of those lives, singly or collectively? Is there a story we might find about those deaths in the media? Are there names attached to those children?¶ There are no obituaries for the war casualties that the United States inflicts, and there cannot be. If there were to be an obituary, there would have had to have been a life, a life worth noting, a life worth valuing and preserving, a life that qualifies for recognition. Although we might argue that it would be impractical to write obituaries for all those people, or for all people, I think we have to ask, again and again, how the obituary functions as the instrument by which grievability is publicly distributed. It is the means by which a life becomes, or fails to become, a publicly grievable life, an icon for national self-recognition, the means by which a life becomes noteworthy. As a result, we have to consider the obituary as an act of nation-building. The matter is not a simple one, for, if a life is not grievable, it is not quite a life; it does not qualify as a life and is not worth a note. It is already the unburied, if not the unburiable.¶ It is not simply, then, that there is a "discourse" of dehumanization that produces these effects, but rather that there is a limit to discourse that establishes the limits of human intelligibility. It is not just that a death is poorly marked, but that it is unmarkable. Such a death vanishes, not into explicit discourse, but in the ellipses by which public discourse proceeds. The queer lives that vanished on September I I were not publicly welcomed into the idea of national identity built in the obituary pages, and their closest relations were only belatedly and selectively (the marital norm holding sway once again) made eligible for benefits. But this should come as no surprise, when we think about how few deaths from AIDS were publicly grievable losses, and how, for instance, the extensive deaths now taking place in Africa are also, in the media, for the most part unmarkable and ungrievable.
The Aff challenges the hegemonic ideology of the status quo by rejecting sacrificial rationalizations. That logic is the basis for colonialism, slavery, genocide, war, and global poverty. Santos 3 2003, Boaventura de Souza Santos is a Professor of Sociology at the University of Coimbra, “Collective Suicide?”, Bad Subjects, Issue # 63 , http://www.ces.fe.uc.pt/opiniao/bss/072en.php According to Franz Hinkelammert, the West has repeatedly been under the illusion that it should try to save humanity by destroying part of it. This is a salvific and sacrificial destruction, committed in the name of the need to radically materialize all the possibilities opened up by a given social and political reality over which it is supposed to have total power. This is how it was in colonialism, with the genocide of indigenous peoples, and the African slaves. This is how it was in the period of imperialist struggles, which caused millions of deaths in two world wars and many other colonial wars. This is how it was in Stalinism, with the Gulag and in Nazism, with the holocaust. And now today, this is how it is in neoliberalism, with the collective sacrifice of the periphery and even the semiperiphery of the world system. With the war against Iraq, it is fitting to ask whether what is in progress is a new genocidal and sacrificial illusion, and what its scope might be. It is above all appropriate to ask if the new illusion will not herald the radicalization and the ultimate perversion of the western illusion: destroying all of humanity in the illusion of saving it. Sacrificial genocide arises from a totalitarian illusion that is manifested in the belief that there are no alternatives to the present-day reality and that the problems and difficulties confronting it arise from failing to take its logic of development to its ultimate consequences. If there is unemployment, hunger and death in the Third World, this is not the result of market failures; instead, it is the outcome of the market laws not having been fully applied. If there is terrorism, this is not due to the violence of the conditions that generate it; it is due, rather, to the fact that total violence has not been employed to physically eradicate all terrorists and potential terrorists. This political logic is based on the supposition of total power and knowledge, and on the radical rejection of alternatives; it is ultra-conservative in that it aims to infinitely reproduce the status quo. Inherent to it is the notion of the end of history. During the last hundred years, the West has experienced three versions of this logic, and, therefore, seen three versions of the end of history: Stalinism, with its logic of insuperable efficiency of the plan; Nazism, with its logic of racial superiority; and neoliberalism, with its logic of insuperable efficiency of the market. The first two periods involved the destruction of democracy. The last one trivializes democracy, disarming it in the face of social actors sufficiently powerful to be able to privatize the State and international institutions in their favour. I have described this situation as a combination of political democracy and social fascism. One current manifestation of this combination resides in the fact that intensely strong public opinion, worldwide, against the war is found to be incapable of halting the war machine set in motion by supposedly democratic rulers. At all these moments, a death drive, a catastrophic heroism, predominates, the idea of a looming collective suicide, only preventable by the massive destruction of the other. Paradoxically, the broader the definition of the other and the efficacy of its destruction, the more likely collective suicide becomes. In its sacrificial genocide version, neoliberalism is a mixture of market radicalization, neoconservatism and Christian fundamentalism. Its death drive takes a number of forms, from the idea of "discardable populations", referring to citizens of the Third World not capable of being exploited as workers and consumers, to the concept of "collateral damage" , to refer to the deaths, as a result of war, of thousands of innocent civilians. The last, catastrophic heroism, is quite clear on two facts: according to reliable calculations by the Non-Governmental Organization MEDACT, in London, between 48 and 260 thousand civilians will die during the war and in the three months after (this is without there being civil war or a nuclear attack); the war will cost 100 billion dollars, enough to pay the health costs of the world's poorest countries for four years. Is it possible to fight this death drive? We must bear in mind that, historically, sacrificial destruction has always been linked to the economic pillage of natural resources and the labor force, to the imperial design of radically changing the terms of economic, social, political and cultural exchanges in the face of falling efficiency rates postulated by the maximalist logic of the totalitarian illusion in operation. It is as though hegemonic powers, both when they are on the rise and when they are in decline, repeatedly go through times of primitive accumulation, legitimizing the most shameful violence in the name of futures where, by definition, there is no room for what must be destroyed. In today's version, the period of primitive accumulation consists of combining neoliberal economic globalization with the globalization of war. The machine of democracy and liberty turns into a machine of horror and destruction.
10/17/21
AC
Tournament: Damus Hollywood Invitational | Round: 1 | Opponent: Mountain View EN | Judge: Gentleman, Jonah Aff AC Incarcerated workers do not have a right to strike in the US. Harvard Law Review, 19 - ("Striking the Right Balance: Toward a Better Understanding of Prison Strikes," Harvard Law Review 03/8/2019, accessed 10-28-2021, https://harvardlawreview.org/2019/03/striking-the-right-balance-toward-a-better-understanding-of-prison-strikes/)//ML II. LEGAL FRAMEWORK GOVERNING PRISON STRIKES: STATE LAW AND FEDERAL STATUTES¶ A. Statutes and Regulations¶ As a threshold matter, state and federal statutory law provides no recourse for protecting prison strikes. Incarcerated individuals are not included as protected “employees” in the text of federal labor laws like the Fair Labor Standards Act78 and the National Labor Relations Act,79 and courts have refused to extend the protections that these statutes offer to those confined within prison walls.80 Further, this Note is aware of no state labor laws, or for that matter any state constitutional provisions, that have been interpreted to allow prisoners to strike. ¶Not only are prison strikes not protected by statutory law — they also are often explicitly prohibited. State statutes and prison regulations pose the most immediate barrier to prison strike activity, as states across the union appear to categorically bar prison strikes and other forms of inmate collective organizing. For instance, Alaska’s administrative code lists “participation in an organized work stoppage” and “encouraging others to engage in a food strike” as “high-moderate infractions.”81 The same is true at the federal level, as the Bureau of Prisons has made “engaging in or encouraging a group demonstration” and “encouraging others to refuse to work, or to participate in a work stoppage” prohibited acts.82 ¶ Further research is certainly necessary to develop a fuller, more nuanced treatment of the various state and federal statutory schemes that impact prison strikes.83 But even this brief overview drives home a clear bottom line: that state and federal laws, in their current forms, likely offer no viable protection for prison strikes and indeed often prohibit them outright. ¶B. Constitutional Law ¶ The Supreme Court has not spoken directly on the question of whether peaceful prison protests merit constitutional protection. However, two areas of constitutional analysis — prisoners’ rights broadly and prisoners’ First Amendment rights specifically — suggest that under current law, the answer to this question is likely also a resounding no.¶ 1. Prisoners’ Constitutional Rights Generally. — Section 1 of the Thirteenth Amendment states: “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.”84 By its express terms, the amendment creates an explicit exception for persons serving a sentence pursuant to conviction of a crime, and it therefore offers prisoners no basis to refuse to work or to engage in other forms of peaceful strikes.85 ¶ Despite the Thirteenth Amendment’s clear textual carve-out, courts have not, in modern times, read the wording of the amendment literally to allow the State to treat inmates like slaves.86 According to the Court, “there is no iron curtain drawn between the Constitution and the prisons of this country.”87 Instead, as neither slaves nor free people,88 inmates retain some (but not all) of their constitutional rights when they cross into the prison.89 The Supreme Court has time and again asserted that “lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights.”90 This is the case not only because of the inherently “deprivatory” nature of imprisonment,91 but also because prison administrators must be accorded wide latitude in the complex and difficult task of operating a penal institution.92 This deference, however, “yields to the strictures of the Constitution.”93 Indeed, courts recognize that inmates, despite being incarcerated, retain particular constitutional rights “that the courts must be alert to protect.”94 Such rights that an inmate retains are those “that are not inconsistent with his status as a prisoner or with the legitimate penological objective of the corrections system.”95 ¶ However, as the Court explained in Turner v. Safley, 96 a prison regulation may infringe on a prisoner’s retained constitutional rights as long as “it is reasonably related to legitimate penological interests.”97 Turner identified four relevant factors in determining the reasonableness of a prison regulation: (1) whether there is “a ‘valid, rational connection’ between the regulation and the legitimate governmental interest advanced to justify it”;98 (2) whether alternative means for exercising the asserted right remain available;99 (3) whether accommodation of the asserted right will adversely affect “guards, other inmates, and . . . the allocation of prison resources generally”;100 and (4) whether there is a “ready alternative”101 to the regulation “that fully accommodates the prisoner’s right at de minimis cost to valid penological interests.”102 ¶ So, under the general legal framework for prisoners’ rights, finding constitutional protection for peaceful collective actions like the 2018 prison strike will likely face an uphill battle. Such a right to strike not only must fit within the confines of a “retained right,” which appears to be narrowly defined; it also must go up against Turner and its progeny, which mandate rational basis review for any prison regulation — providing prison officials with broad deference to curtail any rights that a prisoner might retain.103 Turning to prisoner First Amendment jurisprudence specifically, it becomes even clearer that a right to strike likely cannot navigate either difficulty successfully.¶ 2. Prisoners’ First Amendment Rights. — The First Amendment of the Constitution includes within its guarantees political rights to communicate, associate, and present grievances to the government.104 These rights go to the very heart of our political system — one that, as a democracy, values the participation of its citizens.105 Outside of prison walls, the Supreme Court has recognized that individuals may, in many situations, exercise their First Amendment associational rights by peacefully engaging in a work strike.106 Inside prison walls, however, the right to strike is a legal gray area. The Court has analyzed a number of First Amendment rights, including those implicating concerted political activity and association, in the prison context — asking whether (1) the First Amendment right in question is inconsistent with an inmate’s status as a prisoner and (2) prison officials’ interference with such a right reasonably relates to a legitimate penological interest.¶ 107 However, the Court has yet to perform such an analysis for prison strikes specifically. But one seminal Supreme Court case — Jones v. North Carolina Prisoners’ Labor Union, Inc.108 — casts serious doubt on prisoners’ collective right to strike. In Jones, a prisoners’ labor union109 brought an action under 42 U.S.C. § 1983, claiming that the North Carolina Department of Corrections violated its First Amendment rights110 by promulgating a prison rule that prohibited, among other things, union meetings among inmates.111 The three-judge district court agreed, granting substantial injunctive relief to the union.112 The Supreme Court reversed, however, doing so on two main grounds. Writing for the majority, then-Justice Rehnquist first invoked the familiar notion that “the fact of confinement and the needs of the penal institution impose limitations on constitutional rights,” especially First Amendment associational rights.113 Then, without engaging with the specific nature of the potentially retained associational interest in question (that is, that of organizing as a union), Justice Rehnquist concluded that the challenged regulation did not unduly abridge inmates’ First Amendment rights.114 He did so by adopting a rational basis test — emphasizing the critical importance of “wide-ranging judicial deference” to prison officials and their informed discretion in carrying out penological goals.115 In particular, Justice Rehnquist argued that “responsible prison officials must be permitted to take reasonable steps to forestall” the “everpresent potential for violent confrontation” within prisons.116 And as he highlighted, North Carolina prison administrators had testified that the presence of, and potentially even the very objectives of, a prisoners’ union did potentially pose a danger117 — likely resulting in increased friction between inmates themselves or between inmates and prison personnel, as well as in “easily foreseeable” outcomes like “work stoppages.”118 ¶ In light of Jones, it is unlikely that the Supreme Court would, if the question came before it, recognize inmates’ First Amendment right to strike. Although the case concerned the specific issue of prison unions, the Jones Court’s holding was, in its methodology and reasoning, farreaching — (1) providing prison administrators with wide latitude to curtail any inmate collective activity that, in their “reasonable” judgment, threatened institutional order and security119 and, as a result, (2) appearing to severely curtail inmates’ First Amendment rights.120 The Court’s broad deference and narrow First Amendment view should therefore naturally be expected to extend to prison strikes and other forms of collective protest, about which prison officials have consistently offered similar safety concerns and which they have uniformly sought to ban,121 and which Jones specifically acknowledged as a possible unwelcome outcome of allowing prisoners to unionize. ¶ That Jones likely prevents any constitutional protection for prison strikes — and therefore liberally protects prison regulations banning strike activities — is reinforced by how the Supreme Court has applied the case over the past forty years. In Turner, for example, the Court rejected efforts to cabin Jones to barring only “‘presumptively dangerous’ inmate activities.”122 The Court specifically discussed Jones as part of a line of “prisoners’ rights” cases permitting “reasonable” prison regulations to impinge on inmates’ constitutional rights123 and ultimately relied in part on Jones to fashion its general four-part framework for assessing “reasonableness” across prison regulations.124 And in Overton v. Bazzetta, 125 the Supreme Court again invoked Jones to emphasize that “freedom of association is among the rights least compatible with incarceration”126 — though it declined to draw any precise boundaries that would be helpful for determining what, if any, associational rights inmates retain within prison walls, and whether those include strikes.127 ¶Lower courts have not been as wary to draw such boundaries. Under Jones, lower federal courts have uniformly held that prisoners have no constitutionally protected right under the First Amendment to strike. One district court interpreted Jones to hold that prison officials may act to prevent such strikes whenever they have a “good faith” belief that such strikes “threaten the security of the institutions they manage.”128 Lower courts have rejected a right to strike by simply citing to or briefly discussing Jones and contending that it naturally compels such a result,129 or by drawing an explicit connection between the prohibited prison unions at issue in Jones and prison strikes, dubbing strikes to be “a species of ‘organized union activity.’”130 They have also done so by delving into the specifics of why strikes purportedly pose safety and security risks within prisons and why prison regulations barring strikes are therefore rationally related to legitimate penological goals.131 ¶ Lower courts also have justified upholding prison regulations barring strikes by explicitly or implicitly turning to the general Turner framework that Jones helped create — including by arguing that there are ready alternatives to prison strikes,132 or that such regulations are generally permissible exercises of penal authority.133 And finally, it is worth noting that lower federal courts have, in deferring to prison offi- cials’ judgments regarding security, also permitted all manner of regulations designed to punish strikers134 and aid officials in preventing strikes from occurring.135 In short, there exists little, if any, room under current constitutional case law for protecting prison strikes. Incarceration disproportionately affects people of color, which causes a permanent reduction in job opportunities and quality of life. Rezal 21 Adriana Rezal data journalism fellow with U.S. News and World Report, 21 - ("A New Report Explores Racial Disparities in America’s Incarceration Rates," US News and World Report, 10-3-21, accessed 11-3-2021, https://www.usnews.com/news/best-states/articles/2021-10-13/report-highlights-staggering-racial-disparities-in-us-incarceration-rates)//LF A national view of U.S. incarcerated populations by race and ethnicity shows high rates of disparity among the country's communities of color and white Americans, especially among Black communities. While Black Americans are on average 4.8 times more likely to be incarcerated than white Americans, in some states such as New Jersey, Black Americans can be up to 12.5 times more likely to be incarcerated than white Americans. Hawaii demonstrates the lowest differential of Black to white American imprisonment, as shown by the map below. However, Black Americans in Hawaii are still over twice as likely to be incarcerated than white residents. While Latino individuals are on average 1.3 times more likely to be incarcerated than whites in the U.S., in some states such as Massachusetts, Latino populations are up to 4.1 times more likely to be incarcerated than whites. In 20 states, including Oklahoma, North Carolina and New Hampshire, the data in the report shows the likelihood of imprisonment is higher for whites compared to the Latino population. However the report emphasizes the unreliability of ethnicity data possibly contributing to an underestimation of Black and Latino American data. "An example lies in Florida, which claims that 13 of its prison population is Latinx though more than one quarter of its residents are Latinx," (a gender neutral term for 'Latino,' according to the report. "There are most assuredly more Latinx people in prison than are officially reported but the exact number is unknown." When it comes to incarceration, the U.S. is a world leader with 1.2 million people in state prisons across the country. According to the report, imprisonment is a life-altering event that can create negative impacts on the individual and societal level. Individuals released from incarceration may have difficulty gaining employment, finding stable housing and experience reduced lifetime earnings. Additionally, high levels of incarceration within communities can result in increased crime rates and contribute to neighborhood deterioration, according to the study. Although the U.S. remains a world leader in imprisonment, The Sentencing Project reports that nine states have been successful in decreasing their incarcerated population by more than 30 in recent years as a result of policy reforms and reduced prison admissions and lengths of stay. These states include Alaska, New Jersey, New York, Connecticut, Alabama, Rhode Island, Vermont, Hawaii and California. The report cites a number of causes for racial disparity within U.S. prisons. According to the report, the nation's history of white supremacy over Black people created a legacy of racial subordination that impacts their criminal justice outcomes today. The report also asserts that communities of color, especially Black Americans, are negatively affected by biased policies and practices including police-citizen relations, pre-trial detention, the weight criminal history records can carry in sentencing and unequal prosecutorial charging. Prison working conditions are terrible—prisoners work in unsafe conditions and accrue thousands of dollars in debt. Eisen 20 Lauren-Brooke Eisen director of the Brennan Center’s Justice Program where she leads the organization’s work to end mass incarceration, 20 - ("Covid-19 Highlights the Need for Prison Labor Reform," Brennan Center for Justice, 4-17-2020, accessed 11-4-2021, https://www.brennancenter.org/our-work/analysis-opinion/covid-19-highlights-need-prison-labor-reform)//ML For decades, prisoners in American correctional facilities have worked for no wages or mere pennies an hour. As the United States attempts to reduce transmission of Covid-19, more than a dozen states are now relying on this captive labor force to manufacture personal protective equipment badly needed by healthcare workers and other frontline responders.¶ Prisoners in Missouri are currently earning between $0.30 and $0.71 an hour to produce hand sanitizer, toilet paper, and protective gowns that will be distributed across the state. In Louisiana, prisoners are making hand sanitizer for about $0.40 an hour. And in Arkansas, where incarcerated workers are producing cloth masks for prisoners, correctional officers, and other government workers, their labor is entirely uncompensated.¶ This unprecedented health emergency is re-exposing how our country’s long-held practice of paying nothing or next-to-nothing for incarcerated labor, with no labor protections, is akin to modern-day slavery.¶ Prisoners are not protected by the Fair Labor Standards Act (FLSA), the federal law establishing minimum wage and overtime pay eligibility for both private sector and government workers. In 1993, a federal appeals court held that it is up to Congress, not the courts, to decide whether the FLSA applies to incarcerated workers.¶ Courts have also ruled that the National Labor Relations Act, which guarantees the right of private sector employees to collective bargaining, does not apply in prisoners.¶ Even worse, prisoners are excluded from the U.S. Occupational Health and Safety Administration protections that require employers to provide a safe working environment. This dehumanizing lack of protection for prison workers has long subjected them to conditions that have endangered their physical safety.¶ Amid a health threat that worsens in crowded environments, many prisoners are working without any mandated protections. Congress must amend the language of federal employment protections to explicitly extend to work behind bars.¶ Forced labor in prisons has its roots in the post-Civil War Reconstruction period, when Southern planters faced the need to pay the labor force that had long worked for free under brutal conditions to produce the economic capital of the South.¶ Though the 13th Amendment abolished “involuntary servitude,” it excused forcible labor as punishment for those convicted of crimes. As a result, Southern states codified punitive laws, known as the Black Codes, to arbitrarily criminalize the activity of their former slaves. Loitering and congregating after dark, among other innocuous activities, suddenly became criminal. Arrest and convictions bound these alleged criminals to terms of incarceration, often sentenced to unpaid labor for wealthy plantation owners.¶ In the following decades, Southern states — desperate for cheap labor and revenue — widely began leasing prisoners to local planters and Northern industrialists who took responsibility for their housing and feeding, a practice known as convict leasing.¶ Under this system, the captive labor market worked long hours in unsafe conditions, often treated as poorly as they had been as slaves. Records approximate that on an average day between 1885 and 1920, 10,000 to 20,000 prisoners — the overwhelming majority of them Black Americans — continued to toil under these insufferable circumstances.¶ In the 1930s, a series of laws prohibited state prisons from using prison labor, but the federal government continued to rely on this workforce to meet the demands of the rapidly changing markets of mid-century. By 1979, Congress passed legislation allowing state corrections officials to collaborate with private industries to produce prison-made goods, birthing the modern era of prison labor. ¶ Today, approximately 55 percent of the American prison population works while serving their sentences. Prison jobs are broadly divided into two categories: prison support work — such as food preparation, laundry services, and maintenance work — and “correctional industries” jobs, in which prisoners might make license plates, sew military uniforms, or staff a call center. It is prisoners in correctional industries who are currently being deployed to help meet the nation’s need for protective gear.¶ While so many behind bars are manufacturing items the country desperately needs to combat our current health crisis, their low wages and lack of labor protections — among myriad other factors — mean they are not accorded the same benefits or recognition as other workers.¶ What’s more, the measly cents per hour that is typical compensation across often-dangerous prison jobs is not nearly enough to cover the court fees and fines, restitution, child support, and room and board expenses that most state departments of corrections deduct from prisoners’ earnings. When there is anything left, it is barely enough to pay for commissary goods such as food, hygienic products, and toiletries, let alone marked-up email services that prisoners rely on to stay in touch with their loved ones. Despite working for years, many prisoners are left with thousands of dollars in crippling debt by the time they complete their sentences.¶ In 2018, prisoners in dozens of facilities across the country went on strike and issued a list of demands, which included “an immediate end to prison slavery” and that prisoners be “paid the prevailing wage in their state or territory for their labor.”¶ This time of national emergency requires that everyone do their part to slow the spread of coronavirus. The significant shortage of face masks, protective gowns, and hand sanitizer that is putting the lives of our frontline workers in jeopardy necessitates bold and swift action. But if the states and federal government are going to rely on correctional labor to manufacture this equipment, they need to improve the wages and labor protections of our incarcerated workers. To fail to do so is not far off from the devaluation and brutalization of slave labor that was ostensibly abandoned a century and a half ago. Prisoners make almost no money for their labor. Fulcher 15 Patrice A. Fulcher Associate Professor at The John Marshall Law School, 15 - ("," Journal of Civil Rights and Economic Development, Winter 2015, accessed 10-28-2021, https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=1759andcontext=jcred)//ML B.87 In 2011, FPI's net sales were 745 million dollars and their earnings were 62 million dollars.88 Restricted to sell its products only to federal agencies, FPI's largest purchaser is the U.S. Department of Defense, which makes up 52 of it revenues. 89 The FPI use to have a mandatory source requirement for all federal agencies, but it was amended to prohibit any federal agency from purchasing FPI products or services, unless the agency determines that the products offered are the "best value". 90 So in addition to making license plates, furniture and other typical prison-made goods, thousands of federal inmates work for FPI making supplies for the U.S. military. FPI inmates who are given this assignment find themselves making anti-tank missiles, body armor, land mine sweepers, components for fighter aircrafts, and other gear for the Pentagon. 91 ¶Consequently, an inmate who works within the federal prison labor system may make a maximum of $64.00 a month (prior to any state deductions for room and board, taxes, etc., assuming an inmate works 5 days a week for 8 hours), and a maximum of $92.00 a month (subtracting 50 of the wages for the IRFP, assuming an inmate works 5 days a week for 8 hours) if he works for FPI.¶ B. State Prison Labor Systems ¶There are approximately 1,382,000 inmates in state prisons in the U.S.92 State prisoners work within varying labor systems while incarcerated. 9 3 State inmates may (1) work within the confines of a prison, where state or private entities manage the facility, sell the products produced, and receive the profits, (2) work in jobs directly benefiting prison operations by cleaning, cooking, or doing laundry, or (3) work outside of prison walls laboring for the state or private companies. 94 Over the last 30 years, at least 37 states have enacted laws permitting the use of inmate labor by private enterprise. 9 5 State inmates' wages are determined by the state in which they are incarcerated, and may be affected depending on whether the state correctional facility is certified under the Prison Industry Enhancement Certification Program. ¶1. State Prison Labor ¶ Under The Prison Industry Enhancement Certification Program ("PIE") In 1979, Congress passed the Prison Industry Enhancement Certification program ("PIE") under the Justice System Improvement Act.96 The PIE exempts state and local correction departments from the Ashurst-Sumners Act legislation, which placed restrictions on the interstate sale and transportation of prison-made goods.9 7 The specific goal of the PIE was to provide private-sector work opportunities to prisoners by certifying 50 state correctional agencies to sell prison made goods interstate and to the Federal Government (over the original $10,000 limitation). 98 Once a state agency is certified under the PIE, its corrections department may either sell prison made goods on its own, or enter into prison labor contracts with private companies to sell goods in the free market.99 ¶ In order to qualify for PIE certification, correctional agencies have to apply through the Bureau of Justice Assistance ("BJA") or the National Correctional Industries Association, pay state prisoners a prevailing wage, and meet several other statutory requirements.10 0 Paying inmate workers prevailing wages under the PIE may appear equitable on its face, but it is not. Most inmates see only 20 of their gross wages because the PIE also allows for 80 wage deductions for room and board, victim assistance, taxes, and family support.lO' While expecting convicts to defray the cost of their incarceration and victim services is reasonable, as will be seen in part x of this article, the current scheme is short sighted and unwise because, among other things, so little attention is given to reducing recidivism through prison programs and support for newly released inmates. ¶According to the Bureau of Justice Assistance, there were 37 state, and 4 county-based PIE certified correctional industry programs in the U.S. in 2011.102 These PIE programs include the management of at least 175 business partnerships with private industry. 103 In 2012, the number of PIE certifications increased to 45; these certified correctional agencies employed a total of 4,700 inmates. 104 Furthermore, the 45 certified PIE agencies generated $9,780,130 in gross salary revenues in 2012.105 A majority of those earnings went to net inmate salaries ($3,958,354), then correctional institution for room and board ($3,482,883), state and federal taxes ($989,503) victims' programs ($947,770), and the lowest amount to inmate family support ($401,620).106 Therefore, each of the 4,700 prisoners working for PIE certified programs made approximately $842.00 in 2012, which equates to $70.00 a month.¶ ¶2. State Prison Labor Without PIE Protections ¶ State correctional industries without PIE protections are prohibited from selling prison-made products interstate. 107 They also are under no federal obligation to pay working prisoners prevailing wages as required for certification under PIE.108 Depending on the facility, these state correctional agencies typically require inmates to work, and pay inmates from $0.17 to $5.35 per hour.109 There are also several state-operated correctional institutions that force prisoners to work, but pay them absolutely nothing for their labor. For example, the Georgia Department of Corrections does not pay working inmates.1 10 Once a person is sentenced to one of the Georgia's 31 state prisons, he or she will be ordered to either work jobs that directly benefit the prison, make products to be sold to government agencies, or perform city work detail jobs without getting paid a cent.11 In light of these facts, it is not surprising that on December 9, 2010, thousands of Georgia inmates staged the largest prison protest in U.S. History.ll 2 Through the use of contraband cell phones, Georgia inmates in at least seven different state prisons coordinated a nonviolent prison strike.l13 These protesting inmates had several demands, but high on their list was to be paid a living wage for work.114 "If they would start paying us, that would reduce crime behind the walls," said Mike, one of the protesting prisoners, "inmates would have the means to get hygiene items and food from the commissary." 15 The protest lasted approximately 5 days and unfortunately, the prisoners' demands have still not been met.116 Almost all Georgia state-prisoners are still working for free, at least three inmates have publically complained that they were brutally beaten for their involvement in the protest, and in July 2012 several Georgia prisoners went on a hunger strike to protest additional inhumane punishments stemming from the 2010 prison protest.117 ¶Finally, state prisoners labor for correctional institutions that fall under the supervision of state departments of correction, but are separate selfsustaining corporate entities. Some of the prison industries have PIE certification for all of their work programs while others certify only certain jobs under PIE. Two such institutions in the U.S. are the Georgia Correctional Industries ("GCI") and the Oregon Corrections Enterprise ("OCE").118 GCI and OCE utilize state inmate labor to produce and sell a plethora of services and products to state and local government agencies. 19 For instance, GCI employs 1,400 Georgia inmates, who manufacture garments and bedding, institutional and office furniture, cleaning chemicals, perform embroidery, screen printing, reupholstering, engraving, optical, and framing services, work in milk and meat processing plants, and on farms to produce beef and pork, and harvest fruits and vegetables, eggs, grits, and corn. 120 GCI has some work programs certified under PIE, but a majority of the employed inmates work for less than minimum wage.121 GCI boast on its website that they "maintain one of the lowest raw food costs in the nation-$1.57 per day per inmate".122 So inmates laboring in GCI food production factories and fields in the sweltering heat of the Deep South are paid roughly $31.40 a month if they are lucky (prior to state deductions and if they work 5 days a week). Approximately 1,100 of Oregon's 14,300 prisoners work for OCE and perform a variety of services for Oregon government agencies; printing, call centers, laundry service, and mailing projects, and document scanning to name a few. 123 OCE has PIE certification, but it is difficult to determine whether it applies to all of their work programs since inmates' wages still appear to be low.124 In a study conducted by University of Oregon students, three inmates at OCE reported that after working each month, they had $50.00 to send home to their families or add to phone call accounts. 125 ¶ C. Private Prison Labor Systems ¶ State governments turned to prison privatization in order to solve the problems arising from the mass incarceration of people in the U.S.126 Thus, the top two private prison corporations in the U.S., Corrections Corporation of America, Inc. ("CCA") and The GEO Group, Inc. ("GEO"), have made billions from acquiring state and federal contracts to manage prisoners. 127 CCA is the leading private prison in the U.S. for it profits from housing more than 80,000 prisoners in the U.S.128 GEO, is one of the world's largest private prison corporations with approximately 80,000 beds and 114 facilities located in the U.S., the United Kingdom, Australia, and South Africa. 129 GEO is only second to CCA in the U.S. because GEO has 56 Facilities and a bed capacity of 61,132,130 while CCA 60 facilities with a bed capacity of more than 90,000.131 ¶ It is clear that CCA and GEO deliver profits to their shareholders from housing inmates, but they also create wealth through forced prison labor. CCA maintains that inmates work in vocational jobs including carpentry, computer applications, construction and building trades, electrical, horticulture and landscaping, masonry, painting, and plumbing. 132 GEO also reports that it provides vocational training, but does not list the specific jobs that inmates perform.133 Since the PIE only applies to state correctional agencies, CCA and GEO are unable to apply directly for certification. As a result, CCA and GEO are under no obligations to pay their inmates prevailing wages. ¶It is difficult to determine how much private prisons actually pay working inmates, but there is nothing to dispute that private prisons also force able inmates to work. It is estimated that private prisons on average pay inmates 17¢ per hour for a maximum of six hours a day, with CCA paying working prisoners the most at .50¢ per hour for "highly skilled positions".134 Other sources suggest that CCA pays working inmates $1.00 a day, and at the same time charges them $5.00 a minute for telephone calls. 135 Additional reports indicate that private prisons pay an average of 93¢ to $4.73 per hour.136 ¶ Private prison companies also capitalized on the growing incarceration of undocumented workers in the U.S. by obtaining million dollar federal detention contracts to house detainees for Immigration and Customs Enforcement ("ICE"). 1 37 Like the other inmates they house, private prison companies also force immigration detainees to work. 138 CCA operates an immigration detention center in Gainesville, Georgia.139 Female detainees in this facility have complained that they are paid subminimum wages for their work and about inadequate medical and living conditions. 140 Low wages for prisoners create cycles of recidivism. Fulcher 15 Patrice A. Fulcher Associate Professor at The John Marshall Law School, 15 - ("," Journal of Civil Rights and Economic Development, Winter 2015, accessed 10-28-2021, https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=1759andcontext=jcred)//ML B. Reallocate Greater Wealth To Working Prisoners and Decrease Recidivism ¶ Working for slave wages or as a slave without compensation is the harsh economic reality for millions of prisoners in the U.S. Then after succumbing to living a life as a slave for the duration of their sentence, these prisoners are released back to society, without any means of financial support from their labors. Often indigent, homeless, and unable to overcome the challenge of obtaining employment with a conviction, many former inmates reoffend.192 Moreover, for those who do secure jobs, their earnings are greatly limited by their criminal records. A recent PEW study revealed "past incarceration reduced subsequent wages by 11 percent, cut annual employment by nine weeks and reduced yearly earnings by 40 percent."1 93 As a result, U.S. recidivism rates will remain high unless former prisoners have economic resources immediately upon release. Thus, the FLSA should be emancipated from the constraints imposed, not by Congress, but by rigid and unsupported judicial interpretation that wrongly exclude working prisoners from its provisions. Free the FLSA and compensate working inmates; allow prisoners to accumulate capital while they are incarcerated, so they will have a means of support to help them rebuild their lives, and not have to commit crimes to survive. ¶ Hence, I propose the following basic guidelines in providing FLSA coverage to working inmates: (1) employment should be voluntary; those who do not wish to work must take vocational classes for their entire prison sentence, (2) working inmates should be paid at least minimum wage, (3) automatic wage deductions shall be allowed for taxes and other previous court ordered obligations only, and (4) a forced 80 percent wage deduction will be deposited into an outside interest bearing bank account, accessible only upon release. In adopting this payment scheme, the economic reality for working prisoners will be greatly improved.¶ Utilizing the total PIE quarterly statics from 2012 mentioned above in section III(B)(1)(only subtracting family costs and taxes), each of the, 4,700 inmates working in PIE programs would have received approximately $356.00 a month instead of $70.00.194 This figure represents net wages after an 80 percent deduction of $1,427.00 is transferred into an interest bearing account.1 95 Additionally, since today's prisoners serve an average of 5.2 years in prison, 196 each of the 4,700 inmates under the proposed new FLSA guidelines would have at least $3,567.50 upon his or her release if the 80 were placed in an account with an interest rate of at least a 3. Granted, this amount may not seem significant, but it is better than expecting that a bus ticket and a knapsack of clothes will be enough to enable a person who has been incarcerated to build his life in free society. ¶ Plan Plan: The United States ought to recognize the unconditional right of incarcerated workers to strike. Solvency The right to strike is key for prisoners hoping to reform the criminal justice system, allows prison laborers to publicize their conditions and assert their right to dignity Harvard Law Review, 19 - ("Striking the Right Balance: Toward a Better Understanding of Prison Strikes," Harvard Law Review 03/8/2019, accessed 10-28-2021, https://harvardlawreview.org/2019/03/striking-the-right-balance-toward-a-better-understanding-of-prison-strikes/)//ML But in order to ensure that the Constitution truly does not stop at the prison walls, courts cannot simply accept prison administrators’ fears regarding strikes at face value and instead should rigorously test their credibility and basis in fact.143 And more importantly, by over-deferring and failing to engage in any analysis of the merits of prison strikes, courts miss an important opportunity. As this Note has argued, prison strikes represent an underappreciated aspect of prison life — the means by which prisoners have, throughout the course of American history, surfaced pressing problems of our carceral state and initiated important transformations in our prison system. Therefore, it is imperative to meaningfully consider why and how such strikes merit legal protection — even if such protection appears to fly in the face of the current state of the law and to defy conventional wisdom. To that end, this Part first explores the First Amendment as one potential avenue for considering the merits of prison strikes, by presenting three critical First Amendment values contained within prison strikes,144 and it then briefly discusses other potential legal avenues for courts and scholars to consider. A. Considering the First Amendment Values of Prison Strikes The right to strike within prisons may be conceptually viewed as a composite of three separate fundamental First Amendment freedoms: the freedom to peacefully associate, the freedom of speech, and the freedom to assemble and petition for redress of grievances.145 Each is considered in turn. 1. Association. — The right to peaceful association is one that captures the right of individuals to commune with others for the expression of ideas and for effective advocacy.146 Strikes, like prison unions, represent an important means of association for prisoners — allowing them to “lay claim to a social identity as ‘workers’ . . . and in doing so generate claims to respect and solidarity.”147 This identity and solidarity can, in turn, enable inmates to engage in productive and peaceful bargains with prison officials for better conditions, higher pay, and other reform desires. Bargaining is, in many respects, already very common in prisons, “for the simple reason that prison administrators rarely have sufficient resources to gain complete conformity to all the rules.”148 However, such bargaining typically happens in an informal, ongoing, private process;149 in their recurrent, day-to-day contact with inmates, prison administrators use their arsenal of tools150 to “negotiate” only with select inmate leaders,151 with the central goal of maintaining “short term surface order.”152 This informal bargaining is “dysfunctional” to the long-term stability of prison institutions and “the real needs of those incarcerated within” them153 — creating hierarchical relationships154 that breed mistrust155 and leave many inmates powerless and feeling aggrieved.156 As a result, inmates often feel that they have to resort to violence to protect themselves from exploitation, express their dissatisfaction, and obtain redress.157 Alternatively, peaceful, collective prison strikes avoid these harmful consequences by allowing for “open” and “formal” negotiations between all inmates and prison staff.158 Such transparent and legitimated bargaining benefits both inmates and prisons as a whole. By initiating peaceful protests such as work stoppages, all inmates are able “to solve problems, maximize gains, articulate goals, develop alternative strategies, and deal with administrators without resorting to force or violence.”159 And by permitting peaceful strikes, prison administrators “provide inmates with a channel for airing grievances and gaining official response . . . giving the institution a kind of safety-valve for peaceful, rather than violent, change”160 — avoiding potentially expensive and time-consuming litigation and even helping rehabilitate inmates,161 all while deemphasizing hierarchical structures in prisons that harm institutional order.162 2. Speech. — A prison strike also represents a critical way by which inmates can express themselves.163 First, as alluded to above, a strike allows inmates to claim and communicate an identity — as more than just marginalized, ignored convicts with little to no self-determination, but instead as workers and human beings entitled to basic dignity. Such collective actions represent the “performative declaration and affirmation of rights that one does not (yet) have.”164 And, as Professor Jocelyn Simonson discusses, these strikes are collective contestations to “demand dignity, calling attention to the ways in which prisoners are treated as less than human and in the process reclaiming their own agency.”165 Such dignitary considerations, which courts have sought to protect under First Amendment principles, should therefore naturally extend to prisoners attempting to, through strikes, express their basic selfworth.166 Beyond representing a form of inherent, individual expression for inmates, prison strikes also represent a broader form of expression, allowing inmates to be visible to and heard by the public at large. Over the course of American history, inmates — by virtue of being locked up in isolated, impregnable penitentiaries — have largely been a silent and ignored segment of the American population.167 Through peaceful protests like the 2018 national prison strike, however, their suffering, their calls for reform, and their voices are, for the first time, directly expressed on a large scale, ringing out loudly beyond the prison walls and jumpstarting important conversations of criminal justice reform. It is critical to protect such expression; “indeed, it is from the voices of those who have been most harmed by the punitive nature of our criminal justice system that we can hear the most profound reimaginings of how the system might be truly responsive to local demands for justice and equality.”168 3. Petition for Redress. Inmates’ strikes can be seen not only as expressions of their dignity and general efforts to express their voices beyond prison walls but also as significant methods of assembly to call attention to specific grievances and seek redress from the government.169 While in theory “there is no iron curtain drawn between the Constitution and the prisons of this country,”170 in practice, “prisons often escape the daily microscope focused on other American institutions such as schools, churches, and government.”171 Courts grant prison administrators wide deference not only in running day-to-day life within prisons but also in restricting press access to prisons.172 Therefore, much of the American public — already closed off from and largely indifferent to the lives of prisoners — is kept even more in the dark about prison conditions and the state of our carceral system as a whole. Prison conditions, from what has been documented, are horrendous across states. Many prisons are severely overcrowded and seriously understaffed;173 inmates routinely experience physical abuse and even death at the hands of prison guards,174 receive inadequate protection from guards, are deprived of basic necessities,175 are given substandard medical care,176 and are forced to live in squalor and tolerate extreme circumstances;177 most prisoners have minimal, if any, access, to rehabilitative or mental health services;178 and prisoners have little legal recourse, as internal prison grievance procedures are often stacked against inmates,179 and judicial deference and federal legislation have effectively shut the courthouse doors on prisoners’ civil rights claims.180 And across prisons, criminal sentencing laws not only have contributed to an unprecedented era of mass incarceration, but also have forced African Americans and people of color broadly to bear much of this burden.181 As the Marshall Project states, “society won’t fix a prison system it can’t see”;182 peaceful prison strikes like the 2018 strike, however, draw back the “iron curtain” of prison walls, bringing to light many of the pressing issues described above. Through these strikes, inmates are able not only to express their grievances to their prison administrators, but also to “publicize their on-the-ground realities to the larger world”183 and, in turn, gain attention from and access to the political branches able to implement policy reforms.184 As recent history has shown, inmates have experienced some success by pressing their claims against the government through publicized strikes. For example, as described above, the California strikes in 2011 and 2013 generated public outcry that eventually resulted in transfor- mations to the California prison system’s solitary confinement policies.185 In Alabama, inmates’ participation in the 2016 nationwide prison strike helped prompt the Department of Justice to open an investigation into the state’s prison conditions.186 And more broadly speaking, strikes like the 2018 strike have begun to “remedy power imbalances, bring aggregate structural harms into view, and shift deeply entrenched legal and constitutional” barriers to critical prison reforms.187 B. Considering Additional Legal Avenues for Protecting Prison Strikes The foregoing analysis suggests that the First Amendment is a critical, worthwhile vehicle for considering the merits of a right to strike for prisoners. As Justice Black recognized, the importance of such analysis likely transcends prisoners themselves. He wrote: “I do not believe that it can be too often repeated that the freedoms of speech, press, petition and assembly guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish.”188 But this Note acknowledges that judicial recognition of prison strikes’ First Amendment values requires significant doctrinal change. Convincing the Supreme Court to overturn its Jones and Turner precedents, and instead to adopt a test with less deference than is currently afforded to prison administrators, is unlikely. As a result, future research is necessary to identify other potential avenues to consider the legal status and merits of prison strikes. As alluded to above, labor law presents one such promising avenue, as does state constitutional and statutory law. Drawing from the broader j Incarcerated workers are uniquely vulnerable to exploitation the right to strike is a key weapon in fighting for better conditions Kelly 18 Kim Kelly is a freelance journalist and organizer based in Philadelphia. Her work on labor, class, politics, and culture has appeared in the New Republic, the Washington Post, the Baffler, and Esquire, among other publications, and she is the author of FIGHT LIKE HELL, a forthcoming book of intersectional labor history. “How the Ongoing Prison Strike is Connected to the Labor Movement”. 9-4-2018. Teen Vogue. https://www.teenvogue.com/story/labor-day-2018-how-the-ongoing-prison-strike-is-connected-to-the-labor-movement. Accessed 11-1-2021; MJen It’s a tough time to be a worker in America. The Trump administration has slashed important workplace safety regulations to ribbons; the economic gap between the poor and working classes and the 1 continues to widen at an alarming rate; poverty remains rampant; and overall, union membership, which affords protection to workers throughout the country, hovered around only 11 for 2017. Headlines alleging worker exploitation at Silicon Valley giants like Amazon, Tesla, and Uber bombard our screens; even “progressive” media organizations swept up in the digital media organizing wave are struggling, as BuzzFeed founder Jonah Peretti has repeatedly spoken out against unionizing, while Slate and Thrillist employees who have unionized have accused the companies of using anti-union tactics and stalling the process. And the most vulnerable worker populations—sex workers, immigrants, and undocumented people—face increased repression from the government. There is hope, though. For centuries, a worker’s most potent weapon against exploitation from capitalism and oppression from the powers that be has been direct action: the strike. And right now, America’s prisoners are on strike. Incarcerated workers across the nation are standing up to protest their inhumane living conditions and buck the horrific yoke of prison slavery with organized labor’s strongest weapons—solidarity and collective action. The prison strike was organized by workers both inside and outside detention facilities, spearheaded by Jailhouse Lawyers Speak (JLS), and supported by the Incarcerated Workers Organizing Committee (IWOC) and the Free Alabama Movement (FAM), and sparked by deadly uprisings at Lee Correctional Institution in South Carolina earlier this year that cost seven prisoners’ lives. The strike began on August 21 and ends on September 9, dates that reflect the legacy of rebellion in American prisons: on August 21, 1971, George Jackson was killed by prison guards in San Quentin, and his death was met by protests from other prisoners across the country, culminating in the famed September 9 uprising at the Attica Correctional Facility in upstate New York. By choosing these dates, participants in the prison strike of 2018 are drawing a direct line between their current struggle and the struggles of those who have come before, emphasizing the stark fact that very little has changed in terms of conditions or opportunities for those who are locked up and held by the state since the birth of the modern prison system. The striking prisoners of today have released a a list of ten demands. which calls for improvements to the current living conditions in prisons, increased rehabilitation programs, educational opportunities, and specific policy goals. This essentially articulates the idea of non-reformist reforms, a central plank of prison abolition. By illuminating the barbarity of the current prison system and calling for its abolishment while advocating for an improvement in current conditions, they are—to paraphrase French socialist André Gorz—asking not for what can be achieved within a current system, but for what should be possible. As of August 21, across 17 states (and one Canadian province), these incarcerated workers are demanding real, tangible prison reform, and the abolition of one of America’s great enduring shames—the loophole enacted by the 13th amendment that decrees slavery can be used to penalize those convicted of a crime. This is where the term “prison slavery” originates, as director Ava DuVernay laid out in her groundbreaking 2016 documentary 13th, which argues that slavery never ended — it was just repurposed by the prison industrial complex and blossomed as mass incarceration. Her documentary argued that the new American plantations don’t grow cotton, they work prison jobs churning out license plates and other cheap goods, for which prisoners are paid mere pennies on the hour—if at all. Meanwhile, prison labor generates an estimated $1 billion per year, proving to be quite a profitable business for the private companies and corporations who benefit from prisoners’ work. Prison labor is used to manufacture a vast array of consumer goods, from Christmas toys and blue jeans to military equipment, lingerie, and car parts. Incarcerated people also frequently serve as a captive labor force for prisons themselves as kitchen and maintenance workers, and for a variety of other services, from shoveling snow after a Boston blizzard to harvesting oranges in Florida. (California recently made headlines when it was revealed that it was using prison labor to fight its deadly wildfires, which it has done since the 1940s; the prisoners (which included some juvenile offenders) were reportedly paid $1 per hour plus $2 per day to risk their lives, and are barred from becoming firefighters after their release.) Prisoners are paid very little for their work; the average wage in state prisons ranges, on average, from 14 cents to 63 cents per hour for “regular” prison jobs, and between 33 cents and $1.41 per hour for those who work for state-owned businesses, and while they are working full-time jobs, prisoners do not always have the benefit of basic labor protections, such as minimum wage, sick leave, or overtime pay. Given that the United States has the highest incarceration rate in the world, with 2.3 million people currently behind bars, the prison industrial complex would collapse were it to pay incarcerated workers the minimum wage—which creates further incentive for them to keep locking people up. Many prisoners welcome the chance to work during their incarceration, because it gets them out of their cells, allows them to make purchases from commissary, and gives them the opportunity to send money home to their loved ones, but not everyone is given a choice: according to Newsweek, some prisoners in eight states—Alabama, Arkansas, Florida, Georgia, Mississippi, Oklahoma, South Carolina, and Texas—are not paid at all for their labor in government-run facilities. Unlike most other workers, prisoners cannot simply walk off the job; they are forced to get more creative. Participants in the strike have several options available to them, according to Mother Jones, including commissary boycotts, work stoppages, sit-ins, and hunger strikes, and reports of participation are continually coming in from different facilities. In addition, these workers also have much more to fear in terms of retaliation, and several organizers say that they have already endured punitive measures. Participating in a prison strike is a matter of life or death, but for prisoners seeking justice, if not freedom, there is really no other option. There has been a huge amount of media coverage over this prison strike, a massive contrast to the last major national prison strike in 2016, which was said by some to be the largest prison strike in American history and involved what one organizer estimated as roughly 20,000 incarcerated workers and across at least 20 facilities yet received little to no mainstream media coverage. The tide seems to be turning, buoyed by a number of factors, from the continuing outcry over police brutality and more visible conversations over the horrors of the prison industrial complex to the overtly racist practices of the Trump regime. More people on the outside are waking up to the terrible plight of our siblings behind the walls, but awareness isn’t enough: they need support, solidarity, and action. It bears remembering that, above all, this strike is a human rights campaign. Ending prison slavery and supporting incarcerated workers is absolutely a labor issue, and every union and labor activist in the nation should be standing up to support their efforts. The companies who profit off of this modern day slavery have blood on their hands, just like history’s craven factory owners and coal bosses who oversaw the deaths and degradation of previous generations. We need to equate monetarily supporting companies that use prison labor with crossing the picket line, and to scabbing for enslavement. The fact that there are human beings housed in cages who are forced to work for slave wages is completely unacceptable by any metric, and fixing (if not completely abolishing) this wretched system should be a priority for those who consider themselves part of the labor movement, or on the right side of history. An injury to one is an injury to all, and our fellow workers on the inside are bleeding out. Prisoners currently face massive barriers to striking – they get punished and aren’t allowed to unionize Kozlowska 16 Hanna is a reporter on Quartz's investigations team. She previously worked for The New York Times as a writer for NYT Opinion and was a fellow at Foreign Policy magazine. She was also a stringer for the Times in Poland. “US prisoners are going on strike to protest a massive forced labor system”. 9-06-2016. Quartz. https://qz.com/777415/an-unprecedented-prison-strike-hopes-to-change-the-fate-of-the-900000-americans-trapped-in-an-exploitative-labor-system/. Accessed 11-1-2021; MJen On Friday (Sept. 9) prison inmates across the US will participate in what organizers are touting as the “largest prison strike in history,” stopping work in protest of what many call a modern version of slavery. The protest, organized across 24 states, is spearheaded by the inmate-led Free Alabama Movement (FAM) and coordinated by the Incarcerated Workers Organizing Committee (IWOC), a branch of an international labor union. Its manifesto, published online by “prisoners across the United States,” reads: This is a call to end slavery in America…To every prisoner in every state and federal institution across this land, we call on you to stop being a slave, to let the crops rot in the plantation fields, to go on strike and cease reproducing the institutions of your confinement. The strike will be held on the 45th anniversary of the Attica prison revolt, when prisoners took control of a maximum-security correctional facility near Buffalo, New York, demanding better conditions and an end to their brutal treatment. Today, nearly 900,000 US prisoners work while incarcerated. The Bureau of Prisons, which oversees all federal inmates requires that all prisoners (barring medical reasons) work. State prisoners are in the same boat; according to Eric Fink, a professor at Elon Law school, in all or nearly all US states prisoners must work. If they refuse, they can be punished with solitary confinement, revoking visitation, or other measures. Inmates receive very little pay for their labor—in federal prisons it ranges from $0.12 to $0.40 an hour. In some states, like Texas, those held at state prisons receive zero compensation. The majority of inmates work on prison maintenance and upkeep—cleaning, cooking, etc.—but approximately 80,000 do work for the outside world. Sometimes these jobs are the result of government contracts; other times, prisoners end up doing work for private companies such as Victoria’s Secret, Whole Foods or Walmart. Unlike other American workers, these prisoners are not protected by labor laws. They don’t have access to worker’s compensation, they get payed well below the minimum wage, and they cannot effectively form unions. Courts have ruled that because the relationship between prisons and inmates is not that of an employer and a worker, inmates don’t get these labor protections. According to The Nation, there is a faction among the organizers that would rather see prison labor abolished, but IWOC is pushing for inmates to unionize. “Prisoners are the most exploited labor class in this country,” says Azzurra Crispino, spokesperson for the organization. The moral case to let prisoners unionize and have the protections given to civilian workers is straightforward: forcing people to work is inhumane, as are the ridiculously low wages and often the labor conditions themselves. The economic case is much more complex. Prisons argue that paying inmates a minimum wage would bankrupt them—in fact, Alex Friedmann, an editor for Prison Legal News told The American Prospect that the criminal justice system would collapse has little potential to significantly add to the GDP, there are longer-term and broader effects to consider. Higher wages can help not only inmates, but their dependents in the outside world, who might avoid ending up on welfare having greater support. Cheap inmate labor may save money for prisons or corporations, but meaningful, decently-paid employment and job training could reduce recidivism and future crime. Ultimately, it’s the taxpayers who pay for most of the criminal justice system, and that means they are subsidizing cheap labor for big corporations instead of investing in reducing crime in the future. In addition to putting pressure on individual institutions, strike organizers are hoping to raise awareness among the public. “Nothing is preventing employers from paying prisoners a decent wage and offering benefits and after 300 years it’s pretty clear it isn’t going to happen on its own. No more than slavery was ended in this country because slave owners got enlightened,” said Paul Wright, editor of Prison Legal News and prisoner rights advocate. “Alas, there is no General Sherman coming to rescue and liberate America’s prison slaves.” Framework The impact of structural violence cumulatively outweighs – challenging the structures that facilitate inequality is necessary Ansell 17 - David A. Ansell, Senior Vice President, Associate Provost for Community Health Equity, and Michael E. Kelly Professor of Medicine at Rush University Medical Center (The Death Gap: How Inequality Kills, p. 7-10) There are many different kinds of violence. Some are obvious: punches, attacks, gunshots, explosions. These are the kinds of inter- personal violence that we tend to hear about in the news. Other kinds of violence are intimate and emotional. But the deadliest and most thoroughgoing kind of violence is woven into the fabric of American society. It exists when some groups have more access to goods, resources, and opportunities than other groups, including health and life itself. This violence delivers specific blows against particular bodies in particular neighborhoods. This unequal advantage and violence is built into the very rules that govern our society. In the absence of this violence, large numbers of Americans would be able to live fuller and longer lives. This kind of violence is called structural violence, because it is embedded in the very laws, policies, and rules that govern day-to- day life.8 It is the cumulative impact of laws and social and economic policies and practices that render some Americans less able to access resources and opportunities than others. This inequity of advantage is not a result of the individuals personal abilities but is built into the systems that govern society. Often it is a product of racism, gender, and income inequality. The diseases and premature mortality that Windora and many of my patients experienced were, in the words of Dr. Paul Farmer, "biological reflections of social fault lines."9 As a result of these fault lines, a disproportional burden of illness, suffering, and premature mortality falls on certain neighborhoods, like Windora's. Structural violence can overwhelm an individual's ability to live a free, unfettered, healthy life. As I ran to evaluate Windora, I knew that her stroke was caused in part by lifelong exposure to suffering, racism, and economic deprivation. Worse, the poverty of West Humboldt Park that contributed to her illness is directly and inextricably related to the massive concentration of wealth and power in other neighborhoods just miles away in Chicago's Gold Coast and suburbs. That concentration of wealth could not have occurred without laws, policies, and practices that favored some at the expense of others. Those laws, policies, and practices could not have been passed or enforced if access to political and economic power had not been concentrated in the hands of a few. Yet these political and economic structures have become so firmly entrenched (in habits, social relations, economic arrangements, institutional practices, law, and policy) that they have become part of the matrix of American society. The rules that govern day-to-day life were written to benefit a small elite at the expense of people like Windora and her family. These rules and structures are powerful destructive forces. The same structures that render life predictable, secure, comfortable, and pleasant for many destroy the lives of others like Windora through suffering, poverty, ill health, and violence. These structures are neither natural nor neutral. The results of structural violence can be very specific. In Windora's case, stroke precursors like chronic stress, poverty, and uncontrolled hypertension run rampant in neighborhoods like hers. Windora's ill- ness was caused by neither her cultural traits nor the failure of her will. Her stroke was caused in part by inequity. She is one of the lucky ones, though, because even while structural violence ravages her neighbor- hood, it also abets the concentration of expensive stroke-intervention services in certain wealthy teaching hospitals like mine. If I can get to her in time, we can still help her. Income Inequality and Life Inequality Of course, Windora is not the only person struggling on account of structural violence. Countless neighborhoods nationwide are suffering from it, and people are dying needlessly young as a result. The mag- nitude of this excess mortality is mind-boggling. In 2009 my friend Dr. Steve Whitman asked a simple question, "How many extra black people died in Chicago each year, just because they do not have the same health outcomes as white Chicagoans?" When the Chicago Sun- Times got wind of his results, it ran them on the front page in bold white letters on a black background: "health care gap kills 3200 Black Chicagoans and the Gap is Growing." The paper styled the head- line to look like the declaration of war that it should have been. In fact, we did find ourselves at war not long ago, when almost 3,000 Americans were killed. That was September 11,2001. That tragedy propelled the country to war. Yet when it comes to the premature deaths of urban Americans, no disaster area has been declared. No federal troops have been called up. No acts of Congress have been passed. Yet this disaster is even worse: those 3,200 black people were in Chicago alone, in just one year. Nationwide each year, more than 60,000 black people die prematurely because of inequality.10 While blacks suffer the most from this, it is not just an issue of racism, though racism has been a unique and powerful transmitter of violence in America for over four hundred years.11 Beyond racism, poverty and income inequality perpetuated by exploitative market capitalism are singular agents of transmission of disease and early death. As a result, there is a new and alarming pattern of declining life expectancy among white Americans as well. Deaths from drug overdoses in young white Americans ages 25 to 34 have exploded to levels not seen since the AIDS epidemic. This generation is the first since the Vietnam War era to experience higher death rates than the prior generation.12 White Americans ages 45 to 54 have experienced skyrocketing premature death rates as well, something not seen in any other developed na- tion.13 White men in some Appalachian towns live on average twenty years less than white men a half-day's drive away in the suburbs of Washington, DC. Men in McDowell County, West Virginia, can look forward to a life expectancy only slightly better than that of Haitians.14 But those statistics reflect averages, and every death from structural violence is a person. When these illnesses and deaths are occurring one at a time in neighborhoods that society has decided not to care about—neighborhoods populated by poor, black, or brown people— they seem easy to overlook, especially if you are among the fortunate few who are doing incredibly well. The tide of prosperity in America has lifted some boats while others have swamped. Paul Farmer, the physician-anthropologist who founded Partners in Health, an inter- national human rights agency, reflects on the juxtaposition of "unprecedented bounty and untold penury": "It stands to reason that as beneficiaries of growing inequality, we do not like to be reminded of misery of squalor and failure. Our popular culture provides us with no shortage of anesthesia."15 That people suffer and die prematurely because of inequality is wrong. It is wrong from an ethical perspective. It is wrong from a fair- ness perspective. And it is wrong because we have the means to fix it.
11/6/21
AC Incarcerated Workers Silver and Black
Tournament: Alta Silver and Black | Round: 1 | Opponent: Denver East LF | Judge: Liyanage, Nethmin Aff Advantage Incarcerated workers do not have a right to strike in the US. Harvard Law Review, 19 - ("Striking the Right Balance: Toward a Better Understanding of Prison Strikes," Harvard Law Review 03/8/2019, accessed 10-28-2021, https://harvardlawreview.org/2019/03/striking-the-right-balance-toward-a-better-understanding-of-prison-strikes/)//ML II. LEGAL FRAMEWORK GOVERNING PRISON STRIKES: STATE LAW AND FEDERAL STATUTES¶ A. Statutes and Regulations¶ As a threshold matter, state and federal statutory law provides no recourse for protecting prison strikes. Incarcerated individuals are not included as protected “employees” in the text of federal labor laws like the Fair Labor Standards Act78 and the National Labor Relations Act,79 and courts have refused to extend the protections that these statutes offer to those confined within prison walls.80 Further, this Note is aware of no state labor laws, or for that matter any state constitutional provisions, that have been interpreted to allow prisoners to strike. ¶Not only are prison strikes not protected by statutory law — they also are often explicitly prohibited. State statutes and prison regulations pose the most immediate barrier to prison strike activity, as states across the union appear to categorically bar prison strikes and other forms of inmate collective organizing. For instance, Alaska’s administrative code lists “participation in an organized work stoppage” and “encouraging others to engage in a food strike” as “high-moderate infractions.”81 The same is true at the federal level, as the Bureau of Prisons has made “engaging in or encouraging a group demonstration” and “encouraging others to refuse to work, or to participate in a work stoppage” prohibited acts.82 ¶ Further research is certainly necessary to develop a fuller, more nuanced treatment of the various state and federal statutory schemes that impact prison strikes.83 But even this brief overview drives home a clear bottom line: that state and federal laws, in their current forms, likely offer no viable protection for prison strikes and indeed often prohibit them outright. ¶B. Constitutional Law ¶ The Supreme Court has not spoken directly on the question of whether peaceful prison protests merit constitutional protection. However, two areas of constitutional analysis — prisoners’ rights broadly and prisoners’ First Amendment rights specifically — suggest that under current law, the answer to this question is likely also a resounding no.¶ 1. Prisoners’ Constitutional Rights Generally. — Section 1 of the Thirteenth Amendment states: “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.”84 By its express terms, the amendment creates an explicit exception for persons serving a sentence pursuant to conviction of a crime, and it therefore offers prisoners no basis to refuse to work or to engage in other forms of peaceful strikes.85 ¶ Despite the Thirteenth Amendment’s clear textual carve-out, courts have not, in modern times, read the wording of the amendment literally to allow the State to treat inmates like slaves.86 According to the Court, “there is no iron curtain drawn between the Constitution and the prisons of this country.”87 Instead, as neither slaves nor free people,88 inmates retain some (but not all) of their constitutional rights when they cross into the prison.89 The Supreme Court has time and again asserted that “lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights.”90 This is the case not only because of the inherently “deprivatory” nature of imprisonment,91 but also because prison administrators must be accorded wide latitude in the complex and difficult task of operating a penal institution.92 This deference, however, “yields to the strictures of the Constitution.”93 Indeed, courts recognize that inmates, despite being incarcerated, retain particular constitutional rights “that the courts must be alert to protect.”94 Such rights that an inmate retains are those “that are not inconsistent with his status as a prisoner or with the legitimate penological objective of the corrections system.”95 ¶ However, as the Court explained in Turner v. Safley, 96 a prison regulation may infringe on a prisoner’s retained constitutional rights as long as “it is reasonably related to legitimate penological interests.”97 Turner identified four relevant factors in determining the reasonableness of a prison regulation: (1) whether there is “a ‘valid, rational connection’ between the regulation and the legitimate governmental interest advanced to justify it”;98 (2) whether alternative means for exercising the asserted right remain available;99 (3) whether accommodation of the asserted right will adversely affect “guards, other inmates, and . . . the allocation of prison resources generally”;100 and (4) whether there is a “ready alternative”101 to the regulation “that fully accommodates the prisoner’s right at de minimis cost to valid penological interests.”102 ¶ So, under the general legal framework for prisoners’ rights, finding constitutional protection for peaceful collective actions like the 2018 prison strike will likely face an uphill battle. Such a right to strike not only must fit within the confines of a “retained right,” which appears to be narrowly defined; it also must go up against Turner and its progeny, which mandate rational basis review for any prison regulation — providing prison officials with broad deference to curtail any rights that a prisoner might retain.103 Turning to prisoner First Amendment jurisprudence specifically, it becomes even clearer that a right to strike likely cannot navigate either difficulty successfully.¶ 2. Prisoners’ First Amendment Rights. — The First Amendment of the Constitution includes within its guarantees political rights to communicate, associate, and present grievances to the government.104 These rights go to the very heart of our political system — one that, as a democracy, values the participation of its citizens.105 Outside of prison walls, the Supreme Court has recognized that individuals may, in many situations, exercise their First Amendment associational rights by peacefully engaging in a work strike.106 Inside prison walls, however, the right to strike is a legal gray area. The Court has analyzed a number of First Amendment rights, including those implicating concerted political activity and association, in the prison context — asking whether (1) the First Amendment right in question is inconsistent with an inmate’s status as a prisoner and (2) prison officials’ interference with such a right reasonably relates to a legitimate penological interest.¶ 107 However, the Court has yet to perform such an analysis for prison strikes specifically. But one seminal Supreme Court case — Jones v. North Carolina Prisoners’ Labor Union, Inc.108 — casts serious doubt on prisoners’ collective right to strike. In Jones, a prisoners’ labor union109 brought an action under 42 U.S.C. § 1983, claiming that the North Carolina Department of Corrections violated its First Amendment rights110 by promulgating a prison rule that prohibited, among other things, union meetings among inmates.111 The three-judge district court agreed, granting substantial injunctive relief to the union.112 The Supreme Court reversed, however, doing so on two main grounds. Writing for the majority, then-Justice Rehnquist first invoked the familiar notion that “the fact of confinement and the needs of the penal institution impose limitations on constitutional rights,” especially First Amendment associational rights.113 Then, without engaging with the specific nature of the potentially retained associational interest in question (that is, that of organizing as a union), Justice Rehnquist concluded that the challenged regulation did not unduly abridge inmates’ First Amendment rights.114 He did so by adopting a rational basis test — emphasizing the critical importance of “wide-ranging judicial deference” to prison officials and their informed discretion in carrying out penological goals.115 In particular, Justice Rehnquist argued that “responsible prison officials must be permitted to take reasonable steps to forestall” the “everpresent potential for violent confrontation” within prisons.116 And as he highlighted, North Carolina prison administrators had testified that the presence of, and potentially even the very objectives of, a prisoners’ union did potentially pose a danger117 — likely resulting in increased friction between inmates themselves or between inmates and prison personnel, as well as in “easily foreseeable” outcomes like “work stoppages.”118 ¶ In light of Jones, it is unlikely that the Supreme Court would, if the question came before it, recognize inmates’ First Amendment right to strike. Although the case concerned the specific issue of prison unions, the Jones Court’s holding was, in its methodology and reasoning, farreaching — (1) providing prison administrators with wide latitude to curtail any inmate collective activity that, in their “reasonable” judgment, threatened institutional order and security119 and, as a result, (2) appearing to severely curtail inmates’ First Amendment rights.120 The Court’s broad deference and narrow First Amendment view should therefore naturally be expected to extend to prison strikes and other forms of collective protest, about which prison officials have consistently offered similar safety concerns and which they have uniformly sought to ban,121 and which Jones specifically acknowledged as a possible unwelcome outcome of allowing prisoners to unionize. ¶ That Jones likely prevents any constitutional protection for prison strikes — and therefore liberally protects prison regulations banning strike activities — is reinforced by how the Supreme Court has applied the case over the past forty years. In Turner, for example, the Court rejected efforts to cabin Jones to barring only “‘presumptively dangerous’ inmate activities.”122 The Court specifically discussed Jones as part of a line of “prisoners’ rights” cases permitting “reasonable” prison regulations to impinge on inmates’ constitutional rights123 and ultimately relied in part on Jones to fashion its general four-part framework for assessing “reasonableness” across prison regulations.124 And in Overton v. Bazzetta, 125 the Supreme Court again invoked Jones to emphasize that “freedom of association is among the rights least compatible with incarceration”126 — though it declined to draw any precise boundaries that would be helpful for determining what, if any, associational rights inmates retain within prison walls, and whether those include strikes.127 ¶Lower courts have not been as wary to draw such boundaries. Under Jones, lower federal courts have uniformly held that prisoners have no constitutionally protected right under the First Amendment to strike. One district court interpreted Jones to hold that prison officials may act to prevent such strikes whenever they have a “good faith” belief that such strikes “threaten the security of the institutions they manage.”128 Lower courts have rejected a right to strike by simply citing to or briefly discussing Jones and contending that it naturally compels such a result,129 or by drawing an explicit connection between the prohibited prison unions at issue in Jones and prison strikes, dubbing strikes to be “a species of ‘organized union activity.’”130 They have also done so by delving into the specifics of why strikes purportedly pose safety and security risks within prisons and why prison regulations barring strikes are therefore rationally related to legitimate penological goals.131 ¶ Lower courts also have justified upholding prison regulations barring strikes by explicitly or implicitly turning to the general Turner framework that Jones helped create — including by arguing that there are ready alternatives to prison strikes,132 or that such regulations are generally permissible exercises of penal authority.133 And finally, it is worth noting that lower federal courts have, in deferring to prison offi- cials’ judgments regarding security, also permitted all manner of regulations designed to punish strikers134 and aid officials in preventing strikes from occurring.135 In short, there exists little, if any, room under current constitutional case law for protecting prison strikes. Incarceration disproportionately affects people of color, which causes a permanent reduction in job opportunities and quality of life. Rezal 21 Adriana Rezal data journalism fellow with U.S. News and World Report, 21 - ("A New Report Explores Racial Disparities in America’s Incarceration Rates," US News and World Report, 10-3-21, accessed 11-3-2021, https://www.usnews.com/news/best-states/articles/2021-10-13/report-highlights-staggering-racial-disparities-in-us-incarceration-rates)//LF A national view of U.S. incarcerated populations by race and ethnicity shows high rates of disparity among the country's communities of color and white Americans, especially among Black communities. While Black Americans are on average 4.8 times more likely to be incarcerated than white Americans, in some states such as New Jersey, Black Americans can be up to 12.5 times more likely to be incarcerated than white Americans. Hawaii demonstrates the lowest differential of Black to white American imprisonment, as shown by the map below. However, Black Americans in Hawaii are still over twice as likely to be incarcerated than white residents. While Latino individuals are on average 1.3 times more likely to be incarcerated than whites in the U.S., in some states such as Massachusetts, Latino populations are up to 4.1 times more likely to be incarcerated than whites. In 20 states, including Oklahoma, North Carolina and New Hampshire, the data in the report shows the likelihood of imprisonment is higher for whites compared to the Latino population. However the report emphasizes the unreliability of ethnicity data possibly contributing to an underestimation of Black and Latino American data. "An example lies in Florida, which claims that 13 of its prison population is Latinx though more than one quarter of its residents are Latinx," (a gender neutral term for 'Latino,' according to the report. "There are most assuredly more Latinx people in prison than are officially reported but the exact number is unknown." When it comes to incarceration, the U.S. is a world leader with 1.2 million people in state prisons across the country. According to the report, imprisonment is a life-altering event that can create negative impacts on the individual and societal level. Individuals released from incarceration may have difficulty gaining employment, finding stable housing and experience reduced lifetime earnings. Additionally, high levels of incarceration within communities can result in increased crime rates and contribute to neighborhood deterioration, according to the study. Although the U.S. remains a world leader in imprisonment, The Sentencing Project reports that nine states have been successful in decreasing their incarcerated population by more than 30 in recent years as a result of policy reforms and reduced prison admissions and lengths of stay. These states include Alaska, New Jersey, New York, Connecticut, Alabama, Rhode Island, Vermont, Hawaii and California. The report cites a number of causes for racial disparity within U.S. prisons. According to the report, the nation's history of white supremacy over Black people created a legacy of racial subordination that impacts their criminal justice outcomes today. The report also asserts that communities of color, especially Black Americans, are negatively affected by biased policies and practices including police-citizen relations, pre-trial detention, the weight criminal history records can carry in sentencing and unequal prosecutorial charging. Prison working conditions are terrible—prisoners work in unsafe conditions and accrue thousands of dollars in debt. Eisen 20 Lauren-Brooke Eisen director of the Brennan Center’s Justice Program where she leads the organization’s work to end mass incarceration, 20 - ("Covid-19 Highlights the Need for Prison Labor Reform," Brennan Center for Justice, 4-17-2020, accessed 11-4-2021, https://www.brennancenter.org/our-work/analysis-opinion/covid-19-highlights-need-prison-labor-reform)//ML For decades, prisoners in American correctional facilities have worked for no wages or mere pennies an hour. As the United States attempts to reduce transmission of Covid-19, more than a dozen states are now relying on this captive labor force to manufacture personal protective equipment badly needed by healthcare workers and other frontline responders.¶ Prisoners in Missouri are currently earning between $0.30 and $0.71 an hour to produce hand sanitizer, toilet paper, and protective gowns that will be distributed across the state. In Louisiana, prisoners are making hand sanitizer for about $0.40 an hour. And in Arkansas, where incarcerated workers are producing cloth masks for prisoners, correctional officers, and other government workers, their labor is entirely uncompensated.¶ This unprecedented health emergency is re-exposing how our country’s long-held practice of paying nothing or next-to-nothing for incarcerated labor, with no labor protections, is akin to modern-day slavery.¶ Prisoners are not protected by the Fair Labor Standards Act (FLSA), the federal law establishing minimum wage and overtime pay eligibility for both private sector and government workers. In 1993, a federal appeals court held that it is up to Congress, not the courts, to decide whether the FLSA applies to incarcerated workers.¶ Courts have also ruled that the National Labor Relations Act, which guarantees the right of private sector employees to collective bargaining, does not apply in prisoners.¶ Even worse, prisoners are excluded from the U.S. Occupational Health and Safety Administration protections that require employers to provide a safe working environment. This dehumanizing lack of protection for prison workers has long subjected them to conditions that have endangered their physical safety.¶ Amid a health threat that worsens in crowded environments, many prisoners are working without any mandated protections. Congress must amend the language of federal employment protections to explicitly extend to work behind bars.¶ Forced labor in prisons has its roots in the post-Civil War Reconstruction period, when Southern planters faced the need to pay the labor force that had long worked for free under brutal conditions to produce the economic capital of the South.¶ Though the 13th Amendment abolished “involuntary servitude,” it excused forcible labor as punishment for those convicted of crimes. As a result, Southern states codified punitive laws, known as the Black Codes, to arbitrarily criminalize the activity of their former slaves. Loitering and congregating after dark, among other innocuous activities, suddenly became criminal. Arrest and convictions bound these alleged criminals to terms of incarceration, often sentenced to unpaid labor for wealthy plantation owners.¶ In the following decades, Southern states — desperate for cheap labor and revenue — widely began leasing prisoners to local planters and Northern industrialists who took responsibility for their housing and feeding, a practice known as convict leasing.¶ Under this system, the captive labor market worked long hours in unsafe conditions, often treated as poorly as they had been as slaves. Records approximate that on an average day between 1885 and 1920, 10,000 to 20,000 prisoners — the overwhelming majority of them Black Americans — continued to toil under these insufferable circumstances.¶ In the 1930s, a series of laws prohibited state prisons from using prison labor, but the federal government continued to rely on this workforce to meet the demands of the rapidly changing markets of mid-century. By 1979, Congress passed legislation allowing state corrections officials to collaborate with private industries to produce prison-made goods, birthing the modern era of prison labor. ¶ Today, approximately 55 percent of the American prison population works while serving their sentences. Prison jobs are broadly divided into two categories: prison support work — such as food preparation, laundry services, and maintenance work — and “correctional industries” jobs, in which prisoners might make license plates, sew military uniforms, or staff a call center. It is prisoners in correctional industries who are currently being deployed to help meet the nation’s need for protective gear.¶ While so many behind bars are manufacturing items the country desperately needs to combat our current health crisis, their low wages and lack of labor protections — among myriad other factors — mean they are not accorded the same benefits or recognition as other workers.¶ What’s more, the measly cents per hour that is typical compensation across often-dangerous prison jobs is not nearly enough to cover the court fees and fines, restitution, child support, and room and board expenses that most state departments of corrections deduct from prisoners’ earnings. When there is anything left, it is barely enough to pay for commissary goods such as food, hygienic products, and toiletries, let alone marked-up email services that prisoners rely on to stay in touch with their loved ones. Despite working for years, many prisoners are left with thousands of dollars in crippling debt by the time they complete their sentences.¶ In 2018, prisoners in dozens of facilities across the country went on strike and issued a list of demands, which included “an immediate end to prison slavery” and that prisoners be “paid the prevailing wage in their state or territory for their labor.”¶ This time of national emergency requires that everyone do their part to slow the spread of coronavirus. The significant shortage of face masks, protective gowns, and hand sanitizer that is putting the lives of our frontline workers in jeopardy necessitates bold and swift action. But if the states and federal government are going to rely on correctional labor to manufacture this equipment, they need to improve the wages and labor protections of our incarcerated workers. To fail to do so is not far off from the devaluation and brutalization of slave labor that was ostensibly abandoned a century and a half ago. Prisoners make almost no money for their labor. Fulcher 15 Patrice A. Fulcher Associate Professor at The John Marshall Law School, 15 - ("," Journal of Civil Rights and Economic Development, Winter 2015, accessed 10-28-2021, https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=1759andcontext=jcred)//ML B.87 In 2011, FPI's net sales were 745 million dollars and their earnings were 62 million dollars.88 Restricted to sell its products only to federal agencies, FPI's largest purchaser is the U.S. Department of Defense, which makes up 52 of it revenues. 89 The FPI use to have a mandatory source requirement for all federal agencies, but it was amended to prohibit any federal agency from purchasing FPI products or services, unless the agency determines that the products offered are the "best value". 90 So in addition to making license plates, furniture and other typical prison-made goods, thousands of federal inmates work for FPI making supplies for the U.S. military. FPI inmates who are given this assignment find themselves making anti-tank missiles, body armor, land mine sweepers, components for fighter aircrafts, and other gear for the Pentagon. 91 ¶Consequently, an inmate who works within the federal prison labor system may make a maximum of $64.00 a month (prior to any state deductions for room and board, taxes, etc., assuming an inmate works 5 days a week for 8 hours), and a maximum of $92.00 a month (subtracting 50 of the wages for the IRFP, assuming an inmate works 5 days a week for 8 hours) if he works for FPI.¶ B. State Prison Labor Systems ¶There are approximately 1,382,000 inmates in state prisons in the U.S.92 State prisoners work within varying labor systems while incarcerated. 9 3 State inmates may (1) work within the confines of a prison, where state or private entities manage the facility, sell the products produced, and receive the profits, (2) work in jobs directly benefiting prison operations by cleaning, cooking, or doing laundry, or (3) work outside of prison walls laboring for the state or private companies. 94 Over the last 30 years, at least 37 states have enacted laws permitting the use of inmate labor by private enterprise. 9 5 State inmates' wages are determined by the state in which they are incarcerated, and may be affected depending on whether the state correctional facility is certified under the Prison Industry Enhancement Certification Program. ¶1. State Prison Labor ¶ Under The Prison Industry Enhancement Certification Program ("PIE") In 1979, Congress passed the Prison Industry Enhancement Certification program ("PIE") under the Justice System Improvement Act.96 The PIE exempts state and local correction departments from the Ashurst-Sumners Act legislation, which placed restrictions on the interstate sale and transportation of prison-made goods.9 7 The specific goal of the PIE was to provide private-sector work opportunities to prisoners by certifying 50 state correctional agencies to sell prison made goods interstate and to the Federal Government (over the original $10,000 limitation). 98 Once a state agency is certified under the PIE, its corrections department may either sell prison made goods on its own, or enter into prison labor contracts with private companies to sell goods in the free market.99 ¶ In order to qualify for PIE certification, correctional agencies have to apply through the Bureau of Justice Assistance ("BJA") or the National Correctional Industries Association, pay state prisoners a prevailing wage, and meet several other statutory requirements.10 0 Paying inmate workers prevailing wages under the PIE may appear equitable on its face, but it is not. Most inmates see only 20 of their gross wages because the PIE also allows for 80 wage deductions for room and board, victim assistance, taxes, and family support.lO' While expecting convicts to defray the cost of their incarceration and victim services is reasonable, as will be seen in part x of this article, the current scheme is short sighted and unwise because, among other things, so little attention is given to reducing recidivism through prison programs and support for newly released inmates. ¶According to the Bureau of Justice Assistance, there were 37 state, and 4 county-based PIE certified correctional industry programs in the U.S. in 2011.102 These PIE programs include the management of at least 175 business partnerships with private industry. 103 In 2012, the number of PIE certifications increased to 45; these certified correctional agencies employed a total of 4,700 inmates. 104 Furthermore, the 45 certified PIE agencies generated $9,780,130 in gross salary revenues in 2012.105 A majority of those earnings went to net inmate salaries ($3,958,354), then correctional institution for room and board ($3,482,883), state and federal taxes ($989,503) victims' programs ($947,770), and the lowest amount to inmate family support ($401,620).106 Therefore, each of the 4,700 prisoners working for PIE certified programs made approximately $842.00 in 2012, which equates to $70.00 a month.¶ ¶2. State Prison Labor Without PIE Protections ¶ State correctional industries without PIE protections are prohibited from selling prison-made products interstate. 107 They also are under no federal obligation to pay working prisoners prevailing wages as required for certification under PIE.108 Depending on the facility, these state correctional agencies typically require inmates to work, and pay inmates from $0.17 to $5.35 per hour.109 There are also several state-operated correctional institutions that force prisoners to work, but pay them absolutely nothing for their labor. For example, the Georgia Department of Corrections does not pay working inmates.1 10 Once a person is sentenced to one of the Georgia's 31 state prisons, he or she will be ordered to either work jobs that directly benefit the prison, make products to be sold to government agencies, or perform city work detail jobs without getting paid a cent.11 In light of these facts, it is not surprising that on December 9, 2010, thousands of Georgia inmates staged the largest prison protest in U.S. History.ll 2 Through the use of contraband cell phones, Georgia inmates in at least seven different state prisons coordinated a nonviolent prison strike.l13 These protesting inmates had several demands, but high on their list was to be paid a living wage for work.114 "If they would start paying us, that would reduce crime behind the walls," said Mike, one of the protesting prisoners, "inmates would have the means to get hygiene items and food from the commissary." 15 The protest lasted approximately 5 days and unfortunately, the prisoners' demands have still not been met.116 Almost all Georgia state-prisoners are still working for free, at least three inmates have publically complained that they were brutally beaten for their involvement in the protest, and in July 2012 several Georgia prisoners went on a hunger strike to protest additional inhumane punishments stemming from the 2010 prison protest.117 ¶Finally, state prisoners labor for correctional institutions that fall under the supervision of state departments of correction, but are separate selfsustaining corporate entities. Some of the prison industries have PIE certification for all of their work programs while others certify only certain jobs under PIE. Two such institutions in the U.S. are the Georgia Correctional Industries ("GCI") and the Oregon Corrections Enterprise ("OCE").118 GCI and OCE utilize state inmate labor to produce and sell a plethora of services and products to state and local government agencies. 19 For instance, GCI employs 1,400 Georgia inmates, who manufacture garments and bedding, institutional and office furniture, cleaning chemicals, perform embroidery, screen printing, reupholstering, engraving, optical, and framing services, work in milk and meat processing plants, and on farms to produce beef and pork, and harvest fruits and vegetables, eggs, grits, and corn. 120 GCI has some work programs certified under PIE, but a majority of the employed inmates work for less than minimum wage.121 GCI boast on its website that they "maintain one of the lowest raw food costs in the nation-$1.57 per day per inmate".122 So inmates laboring in GCI food production factories and fields in the sweltering heat of the Deep South are paid roughly $31.40 a month if they are lucky (prior to state deductions and if they work 5 days a week). Approximately 1,100 of Oregon's 14,300 prisoners work for OCE and perform a variety of services for Oregon government agencies; printing, call centers, laundry service, and mailing projects, and document scanning to name a few. 123 OCE has PIE certification, but it is difficult to determine whether it applies to all of their work programs since inmates' wages still appear to be low.124 In a study conducted by University of Oregon students, three inmates at OCE reported that after working each month, they had $50.00 to send home to their families or add to phone call accounts. 125 ¶ C. Private Prison Labor Systems ¶ State governments turned to prison privatization in order to solve the problems arising from the mass incarceration of people in the U.S.126 Thus, the top two private prison corporations in the U.S., Corrections Corporation of America, Inc. ("CCA") and The GEO Group, Inc. ("GEO"), have made billions from acquiring state and federal contracts to manage prisoners. 127 CCA is the leading private prison in the U.S. for it profits from housing more than 80,000 prisoners in the U.S.128 GEO, is one of the world's largest private prison corporations with approximately 80,000 beds and 114 facilities located in the U.S., the United Kingdom, Australia, and South Africa. 129 GEO is only second to CCA in the U.S. because GEO has 56 Facilities and a bed capacity of 61,132,130 while CCA 60 facilities with a bed capacity of more than 90,000.131 ¶ It is clear that CCA and GEO deliver profits to their shareholders from housing inmates, but they also create wealth through forced prison labor. CCA maintains that inmates work in vocational jobs including carpentry, computer applications, construction and building trades, electrical, horticulture and landscaping, masonry, painting, and plumbing. 132 GEO also reports that it provides vocational training, but does not list the specific jobs that inmates perform.133 Since the PIE only applies to state correctional agencies, CCA and GEO are unable to apply directly for certification. As a result, CCA and GEO are under no obligations to pay their inmates prevailing wages. ¶It is difficult to determine how much private prisons actually pay working inmates, but there is nothing to dispute that private prisons also force able inmates to work. It is estimated that private prisons on average pay inmates 17¢ per hour for a maximum of six hours a day, with CCA paying working prisoners the most at .50¢ per hour for "highly skilled positions".134 Other sources suggest that CCA pays working inmates $1.00 a day, and at the same time charges them $5.00 a minute for telephone calls. 135 Additional reports indicate that private prisons pay an average of 93¢ to $4.73 per hour.136 ¶ Private prison companies also capitalized on the growing incarceration of undocumented workers in the U.S. by obtaining million dollar federal detention contracts to house detainees for Immigration and Customs Enforcement ("ICE"). 1 37 Like the other inmates they house, private prison companies also force immigration detainees to work. 138 CCA operates an immigration detention center in Gainesville, Georgia.139 Female detainees in this facility have complained that they are paid subminimum wages for their work and about inadequate medical and living conditions. 140 Low wages for prisoners create cycles of recidivism. Fulcher 15 Patrice A. Fulcher Associate Professor at The John Marshall Law School, 15 - ("," Journal of Civil Rights and Economic Development, Winter 2015, accessed 10-28-2021, https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=1759andcontext=jcred)//ML B. Reallocate Greater Wealth To Working Prisoners and Decrease Recidivism ¶ Working for slave wages or as a slave without compensation is the harsh economic reality for millions of prisoners in the U.S. Then after succumbing to living a life as a slave for the duration of their sentence, these prisoners are released back to society, without any means of financial support from their labors. Often indigent, homeless, and unable to overcome the challenge of obtaining employment with a conviction, many former inmates reoffend.192 Moreover, for those who do secure jobs, their earnings are greatly limited by their criminal records. A recent PEW study revealed "past incarceration reduced subsequent wages by 11 percent, cut annual employment by nine weeks and reduced yearly earnings by 40 percent."1 93 As a result, U.S. recidivism rates will remain high unless former prisoners have economic resources immediately upon release. Thus, the FLSA should be emancipated from the constraints imposed, not by Congress, but by rigid and unsupported judicial interpretation that wrongly exclude working prisoners from its provisions. Free the FLSA and compensate working inmates; allow prisoners to accumulate capital while they are incarcerated, so they will have a means of support to help them rebuild their lives, and not have to commit crimes to survive. ¶ Hence, I propose the following basic guidelines in providing FLSA coverage to working inmates: (1) employment should be voluntary; those who do not wish to work must take vocational classes for their entire prison sentence, (2) working inmates should be paid at least minimum wage, (3) automatic wage deductions shall be allowed for taxes and other previous court ordered obligations only, and (4) a forced 80 percent wage deduction will be deposited into an outside interest bearing bank account, accessible only upon release. In adopting this payment scheme, the economic reality for working prisoners will be greatly improved.¶ Utilizing the total PIE quarterly statics from 2012 mentioned above in section III(B)(1)(only subtracting family costs and taxes), each of the, 4,700 inmates working in PIE programs would have received approximately $356.00 a month instead of $70.00.194 This figure represents net wages after an 80 percent deduction of $1,427.00 is transferred into an interest bearing account.1 95 Additionally, since today's prisoners serve an average of 5.2 years in prison, 196 each of the 4,700 inmates under the proposed new FLSA guidelines would have at least $3,567.50 upon his or her release if the 80 were placed in an account with an interest rate of at least a 3. Granted, this amount may not seem significant, but it is better than expecting that a bus ticket and a knapsack of clothes will be enough to enable a person who has been incarcerated to build his life in free society. ¶ Plan Plan: The United States ought to recognize the unconditional right of incarcerated workers to strike. Solvency The right to strike is key for prisoners hoping to reform the criminal justice system. It allows prison laborers to publicize their conditions and assert their right to dignity Harvard Law Review, 19 - ("Striking the Right Balance: Toward a Better Understanding of Prison Strikes," Harvard Law Review 03/8/2019, accessed 10-28-2021, https://harvardlawreview.org/2019/03/striking-the-right-balance-toward-a-better-understanding-of-prison-strikes/)//ML But in order to ensure that the Constitution truly does not stop at the prison walls, courts cannot simply accept prison administrators’ fears regarding strikes at face value and instead should rigorously test their credibility and basis in fact.143 And more importantly, by over-deferring and failing to engage in any analysis of the merits of prison strikes, courts miss an important opportunity. As this Note has argued, prison strikes represent an underappreciated aspect of prison life — the means by which prisoners have, throughout the course of American history, surfaced pressing problems of our carceral state and initiated important transformations in our prison system. Therefore, it is imperative to meaningfully consider why and how such strikes merit legal protection — even if such protection appears to fly in the face of the current state of the law and to defy conventional wisdom. To that end, this Part first explores the First Amendment as one potential avenue for considering the merits of prison strikes, by presenting three critical First Amendment values contained within prison strikes,144 and it then briefly discusses other potential legal avenues for courts and scholars to consider. A. Considering the First Amendment Values of Prison Strikes The right to strike within prisons may be conceptually viewed as a composite of three separate fundamental First Amendment freedoms: the freedom to peacefully associate, the freedom of speech, and the freedom to assemble and petition for redress of grievances.145 Each is considered in turn. 1. Association. — The right to peaceful association is one that captures the right of individuals to commune with others for the expression of ideas and for effective advocacy.146 Strikes, like prison unions, represent an important means of association for prisoners — allowing them to “lay claim to a social identity as ‘workers’ . . . and in doing so generate claims to respect and solidarity.”147 This identity and solidarity can, in turn, enable inmates to engage in productive and peaceful bargains with prison officials for better conditions, higher pay, and other reform desires. Bargaining is, in many respects, already very common in prisons, “for the simple reason that prison administrators rarely have sufficient resources to gain complete conformity to all the rules.”148 However, such bargaining typically happens in an informal, ongoing, private process;149 in their recurrent, day-to-day contact with inmates, prison administrators use their arsenal of tools150 to “negotiate” only with select inmate leaders,151 with the central goal of maintaining “short term surface order.”152 This informal bargaining is “dysfunctional” to the long-term stability of prison institutions and “the real needs of those incarcerated within” them153 — creating hierarchical relationships154 that breed mistrust155 and leave many inmates powerless and feeling aggrieved.156 As a result, inmates often feel that they have to resort to violence to protect themselves from exploitation, express their dissatisfaction, and obtain redress.157 Alternatively, peaceful, collective prison strikes avoid these harmful consequences by allowing for “open” and “formal” negotiations between all inmates and prison staff.158 Such transparent and legitimated bargaining benefits both inmates and prisons as a whole. By initiating peaceful protests such as work stoppages, all inmates are able “to solve problems, maximize gains, articulate goals, develop alternative strategies, and deal with administrators without resorting to force or violence.”159 And by permitting peaceful strikes, prison administrators “provide inmates with a channel for airing grievances and gaining official response . . . giving the institution a kind of safety-valve for peaceful, rather than violent, change”160 — avoiding potentially expensive and time-consuming litigation and even helping rehabilitate inmates,161 all while deemphasizing hierarchical structures in prisons that harm institutional order.162 2. Speech. — A prison strike also represents a critical way by which inmates can express themselves.163 First, as alluded to above, a strike allows inmates to claim and communicate an identity — as more than just marginalized, ignored convicts with little to no self-determination, but instead as workers and human beings entitled to basic dignity. Such collective actions represent the “performative declaration and affirmation of rights that one does not (yet) have.”164 And, as Professor Jocelyn Simonson discusses, these strikes are collective contestations to “demand dignity, calling attention to the ways in which prisoners are treated as less than human and in the process reclaiming their own agency.”165 Such dignitary considerations, which courts have sought to protect under First Amendment principles, should therefore naturally extend to prisoners attempting to, through strikes, express their basic selfworth.166 Beyond representing a form of inherent, individual expression for inmates, prison strikes also represent a broader form of expression, allowing inmates to be visible to and heard by the public at large. Over the course of American history, inmates — by virtue of being locked up in isolated, impregnable penitentiaries — have largely been a silent and ignored segment of the American population.167 Through peaceful protests like the 2018 national prison strike, however, their suffering, their calls for reform, and their voices are, for the first time, directly expressed on a large scale, ringing out loudly beyond the prison walls and jumpstarting important conversations of criminal justice reform. It is critical to protect such expression; “indeed, it is from the voices of those who have been most harmed by the punitive nature of our criminal justice system that we can hear the most profound reimaginings of how the system might be truly responsive to local demands for justice and equality.”168 3. Petition for Redress. Inmates’ strikes can be seen not only as expressions of their dignity and general efforts to express their voices beyond prison walls but also as significant methods of assembly to call attention to specific grievances and seek redress from the government.169 While in theory “there is no iron curtain drawn between the Constitution and the prisons of this country,”170 in practice, “prisons often escape the daily microscope focused on other American institutions such as schools, churches, and government.”171 Courts grant prison administrators wide deference not only in running day-to-day life within prisons but also in restricting press access to prisons.172 Therefore, much of the American public — already closed off from and largely indifferent to the lives of prisoners — is kept even more in the dark about prison conditions and the state of our carceral system as a whole. Prison conditions, from what has been documented, are horrendous across states. Many prisons are severely overcrowded and seriously understaffed;173 inmates routinely experience physical abuse and even death at the hands of prison guards,174 receive inadequate protection from guards, are deprived of basic necessities,175 are given substandard medical care,176 and are forced to live in squalor and tolerate extreme circumstances;177 most prisoners have minimal, if any, access, to rehabilitative or mental health services;178 and prisoners have little legal recourse, as internal prison grievance procedures are often stacked against inmates,179 and judicial deference and federal legislation have effectively shut the courthouse doors on prisoners’ civil rights claims.180 And across prisons, criminal sentencing laws not only have contributed to an unprecedented era of mass incarceration, but also have forced African Americans and people of color broadly to bear much of this burden.181 As the Marshall Project states, “society won’t fix a prison system it can’t see”;182 peaceful prison strikes like the 2018 strike, however, draw back the “iron curtain” of prison walls, bringing to light many of the pressing issues described above. Through these strikes, inmates are able not only to express their grievances to their prison administrators, but also to “publicize their on-the-ground realities to the larger world”183 and, in turn, gain attention from and access to the political branches able to implement policy reforms.184 As recent history has shown, inmates have experienced some success by pressing their claims against the government through publicized strikes. For example, as described above, the California strikes in 2011 and 2013 generated public outcry that eventually resulted in transfor- mations to the California prison system’s solitary confinement policies.185 In Alabama, inmates’ participation in the 2016 nationwide prison strike helped prompt the Department of Justice to open an investigation into the state’s prison conditions.186 And more broadly speaking, strikes like the 2018 strike have begun to “remedy power imbalances, bring aggregate structural harms into view, and shift deeply entrenched legal and constitutional” barriers to critical prison reforms.187 B. Considering Additional Legal Avenues for Protecting Prison Strikes The foregoing analysis suggests that the First Amendment is a critical, worthwhile vehicle for considering the merits of a right to strike for prisoners. As Justice Black recognized, the importance of such analysis likely transcends prisoners themselves. He wrote: “I do not believe that it can be too often repeated that the freedoms of speech, press, petition and assembly guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish.”188 But this Note acknowledges that judicial recognition of prison strikes’ First Amendment values requires significant doctrinal change. Convincing the Supreme Court to overturn its Jones and Turner precedents, and instead to adopt a test with less deference than is currently afforded to prison administrators, is unlikely. As a result, future research is necessary to identify other potential avenues to consider the legal status and merits of prison strikes. As alluded to above, labor law presents one such promising avenue, as does state constitutional and statutory law. Drawing from the broader j jurisprudence around hunger strikes, and this area of the law’s focus on the body, may present yet another avenue to consider.
Incarcerated workers are uniquely vulnerable to exploitation. The right to strike is a key weapon in fighting for better conditions Kelly 18 Kim Kelly is a freelance journalist and organizer based in Philadelphia. Her work on labor, class, politics, and culture has appeared in the New Republic, the Washington Post, the Baffler, and Esquire, among other publications, and she is the author of FIGHT LIKE HELL, a forthcoming book of intersectional labor history. “How the Ongoing Prison Strike is Connected to the Labor Movement”. 9-4-2018. Teen Vogue. https://www.teenvogue.com/story/labor-day-2018-how-the-ongoing-prison-strike-is-connected-to-the-labor-movement. Accessed 11-1-2021; MJen It’s a tough time to be a worker in America. The Trump administration has slashed important workplace safety regulations to ribbons; the economic gap between the poor and working classes and the 1 continues to widen at an alarming rate; poverty remains rampant; and overall, union membership, which affords protection to workers throughout the country, hovered around only 11 for 2017. Headlines alleging worker exploitation at Silicon Valley giants like Amazon, Tesla, and Uber bombard our screens; even “progressive” media organizations swept up in the digital media organizing wave are struggling, as BuzzFeed founder Jonah Peretti has repeatedly spoken out against unionizing, while Slate and Thrillist employees who have unionized have accused the companies of using anti-union tactics and stalling the process. And the most vulnerable worker populations—sex workers, immigrants, and undocumented people—face increased repression from the government. There is hope, though. For centuries, a worker’s most potent weapon against exploitation from capitalism and oppression from the powers that be has been direct action: the strike. And right now, America’s prisoners are on strike. Incarcerated workers across the nation are standing up to protest their inhumane living conditions and buck the horrific yoke of prison slavery with organized labor’s strongest weapons—solidarity and collective action. The prison strike was organized by workers both inside and outside detention facilities, spearheaded by Jailhouse Lawyers Speak (JLS), and supported by the Incarcerated Workers Organizing Committee (IWOC) and the Free Alabama Movement (FAM), and sparked by deadly uprisings at Lee Correctional Institution in South Carolina earlier this year that cost seven prisoners’ lives. The strike began on August 21 and ends on September 9, dates that reflect the legacy of rebellion in American prisons: on August 21, 1971, George Jackson was killed by prison guards in San Quentin, and his death was met by protests from other prisoners across the country, culminating in the famed September 9 uprising at the Attica Correctional Facility in upstate New York. By choosing these dates, participants in the prison strike of 2018 are drawing a direct line between their current struggle and the struggles of those who have come before, emphasizing the stark fact that very little has changed in terms of conditions or opportunities for those who are locked up and held by the state since the birth of the modern prison system. The striking prisoners of today have released a a list of ten demands. which calls for improvements to the current living conditions in prisons, increased rehabilitation programs, educational opportunities, and specific policy goals. This essentially articulates the idea of non-reformist reforms, a central plank of prison abolition. By illuminating the barbarity of the current prison system and calling for its abolishment while advocating for an improvement in current conditions, they are—to paraphrase French socialist André Gorz—asking not for what can be achieved within a current system, but for what should be possible. As of August 21, across 17 states (and one Canadian province), these incarcerated workers are demanding real, tangible prison reform, and the abolition of one of America’s great enduring shames—the loophole enacted by the 13th amendment that decrees slavery can be used to penalize those convicted of a crime. This is where the term “prison slavery” originates, as director Ava DuVernay laid out in her groundbreaking 2016 documentary 13th, which argues that slavery never ended — it was just repurposed by the prison industrial complex and blossomed as mass incarceration. Her documentary argued that the new American plantations don’t grow cotton, they work prison jobs churning out license plates and other cheap goods, for which prisoners are paid mere pennies on the hour—if at all. Meanwhile, prison labor generates an estimated $1 billion per year, proving to be quite a profitable business for the private companies and corporations who benefit from prisoners’ work. Prison labor is used to manufacture a vast array of consumer goods, from Christmas toys and blue jeans to military equipment, lingerie, and car parts. Incarcerated people also frequently serve as a captive labor force for prisons themselves as kitchen and maintenance workers, and for a variety of other services, from shoveling snow after a Boston blizzard to harvesting oranges in Florida. (California recently made headlines when it was revealed that it was using prison labor to fight its deadly wildfires, which it has done since the 1940s; the prisoners (which included some juvenile offenders) were reportedly paid $1 per hour plus $2 per day to risk their lives, and are barred from becoming firefighters after their release.) Prisoners are paid very little for their work; the average wage in state prisons ranges, on average, from 14 cents to 63 cents per hour for “regular” prison jobs, and between 33 cents and $1.41 per hour for those who work for state-owned businesses, and while they are working full-time jobs, prisoners do not always have the benefit of basic labor protections, such as minimum wage, sick leave, or overtime pay. Given that the United States has the highest incarceration rate in the world, with 2.3 million people currently behind bars, the prison industrial complex would collapse were it to pay incarcerated workers the minimum wage—which creates further incentive for them to keep locking people up. Many prisoners welcome the chance to work during their incarceration, because it gets them out of their cells, allows them to make purchases from commissary, and gives them the opportunity to send money home to their loved ones, but not everyone is given a choice: according to Newsweek, some prisoners in eight states—Alabama, Arkansas, Florida, Georgia, Mississippi, Oklahoma, South Carolina, and Texas—are not paid at all for their labor in government-run facilities. Unlike most other workers, prisoners cannot simply walk off the job; they are forced to get more creative. Participants in the strike have several options available to them, according to Mother Jones, including commissary boycotts, work stoppages, sit-ins, and hunger strikes, and reports of participation are continually coming in from different facilities. In addition, these workers also have much more to fear in terms of retaliation, and several organizers say that they have already endured punitive measures. Participating in a prison strike is a matter of life or death, but for prisoners seeking justice, if not freedom, there is really no other option. There has been a huge amount of media coverage over this prison strike, a massive contrast to the last major national prison strike in 2016, which was said by some to be the largest prison strike in American history and involved what one organizer estimated as roughly 20,000 incarcerated workers and across at least 20 facilities yet received little to no mainstream media coverage. The tide seems to be turning, buoyed by a number of factors, from the continuing outcry over police brutality and more visible conversations over the horrors of the prison industrial complex to the overtly racist practices of the Trump regime. More people on the outside are waking up to the terrible plight of our siblings behind the walls, but awareness isn’t enough: they need support, solidarity, and action. It bears remembering that, above all, this strike is a human rights campaign. Ending prison slavery and supporting incarcerated workers is absolutely a labor issue, and every union and labor activist in the nation should be standing up to support their efforts. The companies who profit off of this modern day slavery have blood on their hands, just like history’s craven factory owners and coal bosses who oversaw the deaths and degradation of previous generations. We need to equate monetarily supporting companies that use prison labor with crossing the picket line, and to scabbing for enslavement. The fact that there are human beings housed in cages who are forced to work for slave wages is completely unacceptable by any metric, and fixing (if not completely abolishing) this wretched system should be a priority for those who consider themselves part of the labor movement, or on the right side of history. An injury to one is an injury to all, and our fellow workers on the inside are bleeding out. Prisoners currently face massive barriers to striking – they get punished and aren’t allowed to unionize Kozlowska 16 Hanna is a reporter on Quartz's investigations team. She previously worked for The New York Times as a writer for NYT Opinion and was a fellow at Foreign Policy magazine. She was also a stringer for the Times in Poland. “US prisoners are going on strike to protest a massive forced labor system”. 9-06-2016. Quartz. https://qz.com/777415/an-unprecedented-prison-strike-hopes-to-change-the-fate-of-the-900000-americans-trapped-in-an-exploitative-labor-system/. Accessed 11-1-2021; MJen On Friday (Sept. 9) prison inmates across the US will participate in what organizers are touting as the “largest prison strike in history,” stopping work in protest of what many call a modern version of slavery. The protest, organized across 24 states, is spearheaded by the inmate-led Free Alabama Movement (FAM) and coordinated by the Incarcerated Workers Organizing Committee (IWOC), a branch of an international labor union. Its manifesto, published online by “prisoners across the United States,” reads: This is a call to end slavery in America…To every prisoner in every state and federal institution across this land, we call on you to stop being a slave, to let the crops rot in the plantation fields, to go on strike and cease reproducing the institutions of your confinement. The strike will be held on the 45th anniversary of the Attica prison revolt, when prisoners took control of a maximum-security correctional facility near Buffalo, New York, demanding better conditions and an end to their brutal treatment. Today, nearly 900,000 US prisoners work while incarcerated. The Bureau of Prisons, which oversees all federal inmates requires that all prisoners (barring medical reasons) work. State prisoners are in the same boat; according to Eric Fink, a professor at Elon Law school, in all or nearly all US states prisoners must work. If they refuse, they can be punished with solitary confinement, revoking visitation, or other measures. Inmates receive very little pay for their labor—in federal prisons it ranges from $0.12 to $0.40 an hour. In some states, like Texas, those held at state prisons receive zero compensation. The majority of inmates work on prison maintenance and upkeep—cleaning, cooking, etc.—but approximately 80,000 do work for the outside world. Sometimes these jobs are the result of government contracts; other times, prisoners end up doing work for private companies such as Victoria’s Secret, Whole Foods or Walmart. Unlike other American workers, these prisoners are not protected by labor laws. They don’t have access to worker’s compensation, they get payed well below the minimum wage, and they cannot effectively form unions. Courts have ruled that because the relationship between prisons and inmates is not that of an employer and a worker, inmates don’t get these labor protections. According to The Nation, there is a faction among the organizers that would rather see prison labor abolished, but IWOC is pushing for inmates to unionize. “Prisoners are the most exploited labor class in this country,” says Azzurra Crispino, spokesperson for the organization. The moral case to let prisoners unionize and have the protections given to civilian workers is straightforward: forcing people to work is inhumane, as are the ridiculously low wages and often the labor conditions themselves. The economic case is much more complex. Prisons argue that paying inmates a minimum wage would bankrupt them—in fact, Alex Friedmann, an editor for Prison Legal News told The American Prospect that the criminal justice system would collapse has little potential to significantly add to the GDP, there are longer-term and broader effects to consider. Higher wages can help not only inmates, but their dependents in the outside world, who might avoid ending up on welfare having greater support. Cheap inmate labor may save money for prisons or corporations, but meaningful, decently-paid employment and job training could reduce recidivism and future crime. Ultimately, it’s the taxpayers who pay for most of the criminal justice system, and that means they are subsidizing cheap labor for big corporations instead of investing in reducing crime in the future. In addition to putting pressure on individual institutions, strike organizers are hoping to raise awareness among the public. “Nothing is preventing employers from paying prisoners a decent wage and offering benefits and after 300 years it’s pretty clear it isn’t going to happen on its own. No more than slavery was ended in this country because slave owners got enlightened,” said Paul Wright, editor of Prison Legal News and prisoner rights advocate. “Alas, there is no General Sherman coming to rescue and liberate America’s prison slaves.” Framework The impact of structural violence cumulatively outweighs – challenging the structures that facilitate inequality is necessary Ansell 17 - David A. Ansell, Senior Vice President, Associate Provost for Community Health Equity, and Michael E. Kelly Professor of Medicine at Rush University Medical Center (The Death Gap: How Inequality Kills, p. 7-10) There are many different kinds of violence. Some are obvious: punches, attacks, gunshots, explosions. These are the kinds of inter- personal violence that we tend to hear about in the news. Other kinds of violence are intimate and emotional. But the deadliest and most thoroughgoing kind of violence is woven into the fabric of American society. It exists when some groups have more access to goods, resources, and opportunities than other groups, including health and life itself. This violence delivers specific blows against particular bodies in particular neighborhoods. This unequal advantage and violence is built into the very rules that govern our society. In the absence of this violence, large numbers of Americans would be able to live fuller and longer lives. This kind of violence is called structural violence, because it is embedded in the very laws, policies, and rules that govern day-to- day life.8 It is the cumulative impact of laws and social and economic policies and practices that render some Americans less able to access resources and opportunities than others. This inequity of advantage is not a result of the individuals personal abilities but is built into the systems that govern society. Often it is a product of racism, gender, and income inequality. The diseases and premature mortality that Windora and many of my patients experienced were, in the words of Dr. Paul Farmer, "biological reflections of social fault lines."9 As a result of these fault lines, a disproportional burden of illness, suffering, and premature mortality falls on certain neighborhoods, like Windora's. Structural violence can overwhelm an individual's ability to live a free, unfettered, healthy life. As I ran to evaluate Windora, I knew that her stroke was caused in part by lifelong exposure to suffering, racism, and economic deprivation. Worse, the poverty of West Humboldt Park that contributed to her illness is directly and inextricably related to the massive concentration of wealth and power in other neighborhoods just miles away in Chicago's Gold Coast and suburbs. That concentration of wealth could not have occurred without laws, policies, and practices that favored some at the expense of others. Those laws, policies, and practices could not have been passed or enforced if access to political and economic power had not been concentrated in the hands of a few. Yet these political and economic structures have become so firmly entrenched (in habits, social relations, economic arrangements, institutional practices, law, and policy) that they have become part of the matrix of American society. The rules that govern day-to-day life were written to benefit a small elite at the expense of people like Windora and her family. These rules and structures are powerful destructive forces. The same structures that render life predictable, secure, comfortable, and pleasant for many destroy the lives of others like Windora through suffering, poverty, ill health, and violence. These structures are neither natural nor neutral. The results of structural violence can be very specific. In Windora's case, stroke precursors like chronic stress, poverty, and uncontrolled hypertension run rampant in neighborhoods like hers. Windora's ill- ness was caused by neither her cultural traits nor the failure of her will. Her stroke was caused in part by inequity. She is one of the lucky ones, though, because even while structural violence ravages her neighbor- hood, it also abets the concentration of expensive stroke-intervention services in certain wealthy teaching hospitals like mine. If I can get to her in time, we can still help her. Income Inequality and Life Inequality Of course, Windora is not the only person struggling on account of structural violence. Countless neighborhoods nationwide are suffering from it, and people are dying needlessly young as a result. The mag- nitude of this excess mortality is mind-boggling. In 2009 my friend Dr. Steve Whitman asked a simple question, "How many extra black people died in Chicago each year, just because they do not have the same health outcomes as white Chicagoans?" When the Chicago Sun- Times got wind of his results, it ran them on the front page in bold white letters on a black background: "health care gap kills 3200 Black Chicagoans and the Gap is Growing." The paper styled the head- line to look like the declaration of war that it should have been. In fact, we did find ourselves at war not long ago, when almost 3,000 Americans were killed. That was September 11,2001. That tragedy propelled the country to war. Yet when it comes to the premature deaths of urban Americans, no disaster area has been declared. No federal troops have been called up. No acts of Congress have been passed. Yet this disaster is even worse: those 3,200 black people were in Chicago alone, in just one year. Nationwide each year, more than 60,000 black people die prematurely because of inequality.10 While blacks suffer the most from this, it is not just an issue of racism, though racism has been a unique and powerful transmitter of violence in America for over four hundred years.11 Beyond racism, poverty and income inequality perpetuated by exploitative market capitalism are singular agents of transmission of disease and early death. As a result, there is a new and alarming pattern of declining life expectancy among white Americans as well. Deaths from drug overdoses in young white Americans ages 25 to 34 have exploded to levels not seen since the AIDS epidemic. This generation is the first since the Vietnam War era to experience higher death rates than the prior generation.12 White Americans ages 45 to 54 have experienced skyrocketing premature death rates as well, something not seen in any other developed na- tion.13 White men in some Appalachian towns live on average twenty years less than white men a half-day's drive away in the suburbs of Washington, DC. Men in McDowell County, West Virginia, can look forward to a life expectancy only slightly better than that of Haitians.14 But those statistics reflect averages, and every death from structural violence is a person. When these illnesses and deaths are occurring one at a time in neighborhoods that society has decided not to care about—neighborhoods populated by poor, black, or brown people— they seem easy to overlook, especially if you are among the fortunate few who are doing incredibly well. The tide of prosperity in America has lifted some boats while others have swamped. Paul Farmer, the physician-anthropologist who founded Partners in Health, an inter- national human rights agency, reflects on the juxtaposition of "unprecedented bounty and untold penury": "It stands to reason that as beneficiaries of growing inequality, we do not like to be reminded of misery of squalor and failure. Our popular culture provides us with no shortage of anesthesia."15 That people suffer and die prematurely because of inequality is wrong. It is wrong from an ethical perspective. It is wrong from a fair- ness perspective. And it is wrong because we have the means to fix it.
12/3/21
Contact Info
Tournament: 0- Contact Information | Round: 1 | Opponent: NA | Judge: NA Email: shayelee25@marlborough.org Phone Number: 310-913-2633