AC - Incarcerated Workers NC - T - Just Government T - Unconditional Healthcare Workers Pandemics PIC 1ar - all from NC NR - All from 1ar 2ar - all from NR
St Marks
1
Opponent: Southlake Carroll EP | Judge: Danielle Dosch
1ac - Medicine Prices no sacrificial genocide nc - neolib K Consult WHO CP China Heg DA t-spec case 1ar - all from NC NR - case neolib K 2ar - all from NR
USC
2
Opponent: Stockdale RP | Judge: Ben Cortez
AC Incarcerated workers NC Abolition K 1ar all from NC NR all from 1ar 2ar all from NR
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Cites
Entry
Date
Contact Information
Tournament: NA | Round: Finals | Opponent: NA | Judge: NA email: tatumzolkin25@marlborough.org phone #: 310-492-3510
10/2/21
ND - Incarcerated Workers
Tournament: Silver and Black | Round: 2 | Opponent: Alta AB | Judge: Hannah Nunley 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. ¶ Solvency Plan: The United States ought to recognize the unconditional right of incarcerated workers to strike.
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 My value is morality and my criterion is reducing structural violence.
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.
Underview
Have a high threshold for evaluating their impacts.
(A) Ethics – The state is complicit in perpetuating inequalities that are terrible for incarcerated workers. Apply a VERY high standard of proof to any rationalization of that policy.
(B) Compound Probability - Multiplied probabilities of long link chains have negligible net probabilities. This is the slippery slope fallacy.
(C) Causal Direction - They will say the fractional probability of a huge impact still has a large expected value, but it’s impossible to determine the direction of low-probability links. Does the butterfly flapping its wings cause the hurricane or prevent it? Disregard tiny-probability links because they don’t guide decision-making.
(D) Complexity – the DA presents a simplistic and deterministic narrative that fails to account for the myriad confounding factors that can disrupt or reverse the link chain of the DA. The most important of these is the probability that people will recognize the dangerous path they’re on and change course, e.g. leaders backing down during the Cuban Missile Crisis.
(E) Decision Gridlock – Every course of action or inaction has a negligible possibility of causing extinction. This makes it impossible to prioritize averting existential risk over all else because such risk is unavoidable. We have no choice but to prioritize REALISTIC probabilities.
12/3/21
ND - Incarcerated Workers v2
Tournament: USC | Round: 2 | Opponent: Stockdale RP | Judge: Ben Cortez AC 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 - ("Emancipate the FLSA: Transform the Harsh Economic Reality of Working Inmates," 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 - ("Emancipate the FLSA: Transform the Harsh Economic Reality of Working Inmates," 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. ¶ Solvency Plan: The United States ought to recognize the unconditional right of incarcerated workers to strike.
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. Underview 1 Scholarly discourse and engagement with politics is key to effective structural reform - critique is insufficient. Purdy ’20 - Jedediah S. Britton-Purdy et al, 20 - ("Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis by Jedediah S. Britton-Purdy, David Singh Grewal, Amy Kapczynski, K. Sabeel Rahman :: SSRN," 3-2-2020, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3547312)//ey/
To embrace the possibility of democratic renewal requires rejecting the terms of the Twentieth-Century Synthesis. We believe that the legal realists—and thinkers in a much longer history of political thought—were right in believing that "the economy" is neither self-defining nor self-justifying. The emphasis in these traditions has been the right one: on power, distribution, and the need for legitimacy as the central themes in the organization of economic life. Moreover, precisely because economic ordering is a political and legal artifact, the idea of an "autonomous" economic domain has always been obscurantist and ideological, even when accepted in good faith.' Law does not and never could simply defer to such a realm. Rather, law is perennially involved in creating and enforcing the terms of economic ordering, most particularly through the creation and maintenance of markets. One of its most important roles, indeed, is determining who is subject to market ordering and on what terms, and who is exempted in favor of other kinds of protection or provision.' Thus the program of law, politics, and institution building often called "neoliberalism" is, and can only be, a specific theory of how to use state power, to what ends, and for whose benefit.' The ideological work of the Twentieth-Century Synthesis has been to naturalize and embed in legal institutions from the Supreme Court to the Antitrust Office and World Trade Organization a specific disposition of power. This power represents a deployment of market ordering that produces intense and cross-cutting forms of inequality and democratic erosion. However, Twentieth-Century Synthesis theorists tend not to see this, precisely because the Synthesis makes it so hard to see (or at least so easy to overlook). If it is to succeed, law and political economy will also require something beyond mere critique. It will require a positive agenda. Many new and energized voices, from the legal academy to political candidates to movement activists, are already building in this direction,' calling for and giving shape to programs for more genuine democracy that also takes seriously questions of economic power and racial subordination;171 more equal distribution of resources and life chances;172 more public and shared resources and infrastructues;173 the displacement of concentrated corporate power and rooting of new forms of worker power;174 the end of mass incarceration and broader contestation of the long history of the criminalization and control of poor people and people of color in building capitalism;175 the recognition of finance and money as public infrastructures;176 the challenges posed by emerging forms of power and control arising from new technologies;177 and the need for a radical new emphasis on ecology.178 These are the materials from which a positive agenda, over time, will be built. Political fights interact generatively with scholarly and policy debates in pointing the way toward a more democratic political economy. The emergence of new grassroots movements, campaigns, and proposals seeking to deepen our democracy is no guarantee of success. But their prevalence and influence make clear the dangers and opportunities of this moment of upheaval—and highlight the stakes of building a new legal imaginary. 179 Neoliberal political economy, with its underlying commitments to efficiency, neutrality, and anti-politics, helped animate, shape, and legitimate a twentieth-century consensus that erased power, encased the market, and reinscribed racialized, economic, and gendered inequities. By contrast, a legal imaginary of democratic political economy, that takes seriously underlying concepts of power, equality, and democracy, can inform a wave of legal thought whose critique and policy imagination can amplify and accelerate these movements for structural reform and, if we are lucky, help remake our polity in more deeply democratic ways. Reform makes revolution more likely. Rejecting it condescendingly asserts the possibility of radical change is better than the certainty of real improvement. Delgado ’87 - Delgado, Richard teaches civil rights and critical race theory at University of Alabama School of Law. He has written and co-authored numerous articles and books, “The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want?”, Harvard Civil Rights - Civil Liberties Law Review, 1987 Critical scholars reject the idea of piecemeal reform. Incremental change, they argue, merely postpones the wholesale reformation that must occur to create a decent society.38 Even worse, an unfair social system survives by using piecemeal reform to disguise and legitimize oppression. 39 Those who control the system weaken resistance by pointing to the occasional concession to, or periodic court victory of, a black plaintiff or worker as evidence that the system is fair and just.40 In fact, Crits believe that teaching the common law or using the case method in law school is a disguised means of preaching incrementalism and thereby maintaining the current power structure.41 To avoid this, CLS scholars urge law professors to abandon the case method, give up the effort to find rationality and order in the case law, and teach in an unabashedly political fashion. 42 The CLS critique of piecemeal reform is familiar, imperialistic and wrong. Minorities know from bitter experience that occasional court victories do not mean the Promised Land is at hand.43 The critique is imperialistic in that it tells minorities and other oppressed peoples how they should interpret events affecting them.44 A court order directing a housing authority to disburse funds for heating in subsidized housing may postpone the revolution, or it may not. In the meantime, the order keeps a number of poor families warm. This may mean more to them than it does to a comfortable academic working in a warm office. It smacks of paternalism to assert that the possibility of revolution later outweighs the certainty of heat now, unless there is evidence for that possibility. The Crits do not offer such evidence. Indeed, some incremental changes may bring revolutionary changes closer, not push them further away. Not all small reforms induce complacency; some may whet the appetite for further combat. The welfare family may hold a tenants' union meeting in their heated living room. CLS scholars' critique of piecemeal reform often misses these possibilities, and neglects the question of whether total change, when it comes, will be what we want. Using the government as a heuristic is better pragmatically and forces us to truly investigate political structures in search of ways to improve instead of using abstract solutions for concrete impacts. Zannotti ’13 - Zannotti, Laura, associate professor of Political Science at Virginia Tech., Ph.D. from the University of Washington in 2008 and joined the Purdue University faculty in 2009. “Governmentality, Ontology, Methodology: Re-thinking Political Agency in the Global World”, originally published online 30 December 2013, DOI: 10.1177/0304375413512098, P. Sage Publications MC By questioning substantialist representations of power and subjects, inquiries on the possibilities of political agency are reframed in a way that focuses on power and subjects’ relational character and the contingent processes of their (trans)formation in the context of agonic relations. Options for resistance to governmental scripts are not limited to ‘‘rejection,’’ ‘‘revolution,’’ or ‘‘dispossession’’ to regain a pristine ‘‘freedom from all constraints’’ or an immanent ideal social order. It is found instead in multifarious and contingent struggles that are constituted within the scripts of governmental rationalities and at the same time exceed and transform them. This approach questions oversimplifications of the complexities of liberal political rationalities and of their interactions with non-liberal political players and nurtures a radical skepticism about identifying universally good or bad actors or abstract solutions to political problems. International power interacts in complex ways with diverse political spaces and within these spaces it is appropriated, hybridized, redescribed, hijacked, and tinkered with. Governmentality as a heuristic focuses on performing complex diagnostics of events. It invites historically situated explorations and careful differentiations rather than overarching demonizations of ‘‘power,’’ romanticizations of the ‘‘rebel’’ or the ‘‘the local.’’ More broadly, theoretical formulations that conceive the subject in non-substantialist terms and focus on processes of subjectification, on the ambiguity of power discourses, and on hybridization as the terrain for political transformation, open ways for reconsidering political agency beyond the dichotomy of oppression/rebellion. These alternative formulations also foster an ethics of political engagement, to be continuously taken up through plural and uncertain practices, that demand continuous attention to ‘‘what happens’’ instead of fixations on ‘‘what ought to be.’’83 Such ethics of engagement would not await the revolution to come or hope for a pristine ‘‘freedom’’ to be regained. Instead, it would constantly attempt to twist the working of power by playing with whatever cards are available and would require intense processes of reflexivity on the consequences of political choices. To conclude with a famous phrase by Michel Foucault ‘‘my point is not that everything is bad, but that everything is dangerous, which is not exactly the same as bad. If everything is dangerous, then we always have something to do. So my position leads not to apathy but to hyper- and pessimistic activism.
Underview 2 Their disads will surely be ridiculous.
(A) Ethics – The state is complicit in perpetuating inequalities that are terrible for incarcerated workers. Apply a VERY high standard of proof to any rationalization of that policy.
(B) Compound Probability - Multiplied probabilities of long link chains have negligible net probabilities. This is the slippery slope fallacy.
(C) Causal Direction - They will say the fractional probability of a huge impact still has a large expected value, but it’s impossible to determine the direction of low-probability links. Does the butterfly flapping its wings cause the hurricane or prevent it? Disregard tiny-probability links because they don’t guide decision-making.
(D) Complexity – the DA presents a simplistic and deterministic narrative that fails to account for the myriad confounding factors that can disrupt or reverse the link chain of the DA. The most important of these is the probability that people will recognize the dangerous path they’re on and change course, e.g. leaders backing down during the Cuban Missile Crisis.
(E) Decision Gridlock – Every course of action or inaction has a negligible possibility of causing extinction. This makes it impossible to prioritize averting existential risk over all else because such risk is unavoidable. We have no choice but to prioritize REALISTIC probabilities.
12/11/21
ND - Income Inequality AC
Tournament: Apple Valley | Round: 1 | Opponent: Eden Prairie AG | Judge: Samantha McLoughlin AC Income Inequality Global Economic Inequality on the Rise World Bank, 20 - ("Rising inequality affecting more than two-thirds of the globe, but it’s not inevitable: new UN report," UN News, 1-21-2020, https://news.un.org/en/story/2020/01/1055681)/AK The World Social Report 2020, published by the UN Department of Economic and Social Affairs (DESA), shows that income inequality has increased in most developed countries, and some middle-income countries - including China, which has the world’s fastest growing economy. The challenges are underscored by UN chief António Guterres in the foreword, in which he states that the world is confronting “the harsh realities of a deeply unequal global landscape”, in which economic woes, inequalities and job insecurity have led to mass protests in both developed and developing countries. “Income disparities and a lack of opportunities”, he writes, “are creating a vicious cycle of inequality, frustration and discontent across generations.” ‘The one per cent’ winners take (almost) all The study shows that the richest one per cent of the population are the big winners in the changing global economy, increasing their share of income between 1990 and 2015, while at the other end of the scale, the bottom 40 per cent earned less than a quarter of income in all countries surveyed. One of the consequences of inequality within societies, notes the report, is slower economic growth. In unequal societies, with wide disparities in areas such as health care and education, people are more likely to remain trapped in poverty, across several generations. Between countries, the difference in average incomes is reducing, with China and other Asian nations driving growth in the global economy. Nevertheless, there are still stark differences between the richest and poorest countries and regions: the average income in North America, for example, is 16 times higher than that of people in Sub-Saharan Africa. Unions give workers enough leverage to effectively negotiate with their employers. Hayes ‘ 21 - Hayes, Lydia, et al. “Trade Unions and Economic Inequality.” Institute of Employment Rights Journal, vol. 4, no., Pluto Journals, 2021, pp. 118–41, https://doi.org/10.13169/instemplrighj.4.0.0118. AK How trade unions promote economic equality. The economic clout of an employer is much stronger than the negotiating capacity of an individual worker who needs to earn a living. Trade unions aim to balance out this uneven power relationship. As democratic organisations, trade unions represent their membership independently of managerial or government control. Having access to a collective voice through trade unions offers opportunities that are not otherwise available to individual workers.. Without trade unions, the realities of working life mean that individual workers are under pressure to simply accept the pay and conditions that an employer presents to them. To do otherwise risks missing out on the chance of a job or being dismissed. The bargaining power of trade unions has the potential to defend existing employment conditions, so that new workers are not brought in on lower rates of pay or forced to accept other terms which are inferior. Even when a worker is well-established in a job, should an employer decide to make cut backs or change hours of work, it can be exceptionally difficult to protect pay or terms and conditions on an individual basis. Employers are attentive to economic peaks and troughs and they are acutely aware of the potential benefits of cheap replacement labour when employment opportunities are scarce. Trade unions can introduce some balance into an otherwise very one-sided situation by requiring that an employer negotiate with the whole workforce. A right to strike for workers would improve working conditions, reduce inequality, and raise worker pay. Myall ’19 - James Myall James is MECEP’s lead on the inclusive economy, including research on labor issues, gender and racial equity, and health care policy. James conducts research and impact analyses, writes educational materials, and collaborates with partners. He is skilled in data collection, research, and statistical and policy analysis. He studied public policy and management at the University of Southern Maine and holds a master’s degree in ancient history and archaeology from the University of St. Andrews in Scotland., 4-17-2019, "Right to strike would level the playing field for public workers, with benefits for all of us," MECEP, https://www.mecep.org/blog/right-to-strike-would-level-the-playing-field-for-public-workers-with-benefits-for-all-of-us/ accessed 10/19/2021 Marlborough JH The right of workers to organize and bargain with their employer benefits all Mainers. Collective bargaining leads to better wages, safer workplaces, and a fairer and more robust economy for everyone — not just union members. The right to strike is critical to collective organizing and bargaining. Without it, Maine’s public employees are unable to negotiate on a level playing field. ¶Maine’s Legislature is considering a bill that would give public-sector workers the right to strike. MECEP supports the legislation, and is urging legislators to enact it. ¶The right to strike would enable fairer negotiations between public workers and the government. All of us have reason to support that outcome. Research shows that union negotiations set the bar for working conditions with other employers. And as the largest employer in Maine, the state’s treatment of its workers has a big impact on working conditions in the private sector. ¶Unions support a fairer economy. Periods of high union membership are associated with lower levels of income inequality, both nationally and in Maine. Strong unions, including public-sector unions, have a critical role to play in rebuilding a strong middle class. ¶Unions help combat inequities within work places. Women and people of color in unions face less wage discrimination than those in nonunion workplaces. On average, wages for nonunionized white women in Maine are 18 percent less than of those of white men. Among unionized workers, that inequality shrinks to just 9 percent. Similarly, women of color earn 26 percent less than men in nonunionized jobs; for unionized women of color, the wage gap shrinks to 17 percent.i ¶All of us have a stake in the success of collective bargaining. But a union without the right to strike loses much of its negotiating power. The right to withdraw your labor is the foundation of collective worker action. When state employees or teachers are sitting across the negotiating table from their employers, how much leverage do they really have when they can be made to work without a contract? It’s like negotiating the price of a car when the salesman knows you’re going to have to buy it — whatever the final price is. ¶Research confirms that public-sector unions are less effective without the right to strike. Public employees with a right to strike earn between 2 percent and 5 percent more than those without it.ii While that’s a meaningful increase for those workers, it also should assuage any fears that a right to strike would lead to excessive pay increases or employees abusing their new right. ¶LD 900, “An Act to Expand the Rights of Public Employees Under the Maine Labor Laws,” ensures that Maine’s public-sector workers will have the same collective bargaining rights as other employees in Maine. The bill would strengthen the ability of Maine’s public-sector workers to negotiate, resulting in higher wagers, a more level playing field, and a fairer economy for all of us. Unions reduce inequality Kerrissey, Jasmine. “Collective Labor Rights and Income Inequality.” American Sociological Review 80, no. 3 (2015): 626–53. http://www.jstor.org/stable/44289582. AK Class-based collective actors are central to understanding income inequality in industrialized democracies. Strong working-class organizational power, usually measured as union density, reduces inequality (Brady et al. 2013; Jacobs and Myers 2014; Western and Rosenfeld 2011). Moreover, the share of the national income that goes to labor relative to capital increases when workers' relative bargaining power is strong (Kristai 2010; Lin and Tomaskovic-Devey 2013). Scholars in the power resource tradition argue that class- based collective actors affect the distributive process at two points: directly through reducing pre-tax and transfer income inequality (market mechanisms) and indirectly through supporting state policies that bolster taxes and transfers (political mechanisms). Through markets, unions directly reduce inequality by securing better wages and benefits for large groups of workers (Bradley et al. 2003; Western and Rosenfeld 2011). Unions' ability to raise wages for substantial numbers of workers is partially affected by the existenence of centralized bargaining structures (Kristai and Cohen 2007; Wallerstein 1999; but see Scheve and Stasavage 2009). However, even in decen- tralized contexts, like the United States, unions have had some success in raising wages for non-union workers through the threat of union- ization (Freeman and Medoff 1984). Although unions typically aim to increase wages, then- ability to do so varies. For instance, beginning in the 1940s in the United States, unions had high density and were relatively successful in increasing wages across entire industries (Free- man and Medoff 1984). As union density fell at the end of the twentieth century, strikes declined and were less effective in achieving higher wages (Rhomberg 2012; Rosenfeld 2006). Moreover, the rise of financialization in the United States has shifted power away from workers and resulted in increased inequality (Lin and Tomaskovic-Devey 2013). However, even in this weak position, workers are less impoverished in highly unionized states (Brady et al. 2013). Worker organizations also affect inequal- ity through political processes. Labor movements often support left parties and rally around policies that redistribute income. Unions influence elections and policies by mobilizing members to vote, protest, and work on political campaigns (Kerrissey and Schofer 2013; Norris 2002; Wood 2000). Through this collective political action, worker organizations aligned with social- democratic parties have been able to shift the relative bargaining power from capital toward labor (Bradley et al. 2003; Esping- Andersen 1985; Korpi 1989; Kristai 2010). One in three deaths in the US alone are caused by income inequality through structural violence Bezruchka, Senior Lecturer in Global Health at the University of Washington, 14 (Stephen, 2014, New Press, “Inequality Kills,” https://depts.washington.edu/eqhlth/pages/BezruchkaInequalityKillsBkPubInfo14.pdf, accessed 6/30/17, pg. 194-195, CD) Everyone in a society gains when children grow up to be healthy adults. The rest of the world seems to understand this simple fact, and only three countries in the world don’t have a policy, at least on the books, for paid maternal leave – Liberia, Papua New Guinea, and the United States. What does that say about our understanding , or concern about the health of our youth? Differences in mortality rates are not just a statistical concern—they reflect suffering and pain for very real individuals and families. The higher mortality in the United States is an example of what Paul Farmer, the noted physician and anthropologist, calls structural violence. The forty-seven infant deaths occur every day because of the way society in the United States is structured, resulting in our health status being that of a middle-income country, not a rich country. There is growing evidence that the factor most responsible for the relatively poor health in the United States is the vast and rising inequality in wealth and income that we not only tolerate, but resist changing. Inequality is the central element, the upstream cause of the social disadvantage described in the IOM report. A political system that fosters inequality limits the attainment of health. The claim that economic inequality is a major reason for our poor health requires that several standard criteria for claiming causality are satisfied: the results are confirmed by many different studies by different investigators over different time periods; there is a dose-response relationship, meaning more inequality leads to worse health; no other contending explanation is posited; and the relationship is biologically plausible, with likely mechanisms through which inequality works. The field of study called stress biology of social comparisons is one such way inequality acts. Those studies confirm that all the criteria for linking inequality to poorer health are met, concluding that the extent of inequality in society reflects the range of caring and sharing, with more unequal populations sharing less. Those who are poorer struggle to be accepted in society and the rich also suffer its effects. A recent Harvard study estimated that about one death in three in this country results from our very high income inequality. Inequality kills through structural violence. There is no smoking gun with this form of violence, which simply produces a lethally large social and economic gap between rich and poor. Income inequality spurs gridlock- makes their impacts inevitable and causes extinction Cribb, 17 -- Australian National University Emeritus Faculty Julian, Fellow, Australian Academy of Technology, Science and Engineering, Surviving The 21st Century: Humanity’s Ten Great Challenges and How We Can Overcome Them, Switzerland: Springer International, 2017, p. 166-167, accessed 2017
The argument that income inequality leads to legislative stalemate and government indecision was advanced by Mian and colleagues in a study of the political outcomes of the 2008–2009 Global Economic Recession (Mian et al. 2012 ), stating “…politically countries become more polarized and fractionalized following financial crises. This results in legislative stalemate, making it less likely that crises lead to meaningful macroeconomic reforms.” It also affects intergenerational cohesion, explains Nobel economics laureate Joseph Stiglitz: “These three realities – social injustice on an unprecedented scale, massive inequities, and a loss of trust in elites – define our political moment, and rightly so…. But we won’t be able to fix the problem if we don’t recognize it. Our young do. They perceive the absence of intergenerational justice, and they are right to be angry” (Stiglitz 2016). From the perspective of the survival of civilization and the human species, financial inequality does not represent a direct threat—indeed most societies have long managed with varying degrees of income disparity. Where it is of concern to a human race, whose numbers and demands have already exceeded the finite boundaries of its shared planet, is in the capacity of inequality to wreck social cohesion and hence, to undermine the prospects for a collaborative effort by the whole of humanity to tackle the multiple existential threats we face. Rich-against-poor is a good way to divert the argument and so de-rail climate action, disarmament, planetary clean-up or food security, for instance. Disunity spells electoral loss in politics, rifts between commanders and their troops breed military defeat, lack of team spirit yields failure in sport, disharmony means a poor orchestra or business performance, family disagreements often lead to dysfunction and violence. These lessons are well-known and attested, from every walk of life. Yet humans persistently overlook the cost of socioeconomic disunity and grievances when it comes to dealing with our common perils as a species. For civilisation and our species to survive and prosper sustainably in the long run, common understandings and co-operation are essential, across all the gulfs that divide us—political, ethnic, religious and economic. A sustainable world, and a viable human species, will not be possible unless the poverty and inequity gaps can be reduced, if not closed. This is not a matter of politics or ideology, as many may argue: it is the same lesson in collective wisdom and collaboration which those earliest humans first learned on the African savannah a million and a half years ago: together we stand, divided we fall. It is purely an issue of co-existence and co-survival. Neither rich nor poor are advantaged by a state of civilisation in collapse. An unsustainable world will kill the affluent as surely as the deprived.
Solvency A just government ought to recognize the unconditional right of workers to strike.
Collective Labor Rights includes right to protest/strike Kerrissey, Jasmine. “Collective Labor Rights and Income Inequality.” American Sociological Review 80, no. 3 (2015): 626–53. http://www.jstor.org/stable/44289582. AK Adopting a worldwide, comparative approach, this research examines the relationship between collective labor rights and income inequality. Collective labor rights represent workers' legal and practical ability to organize unions, bargain collectively, and engage in protest. The concept of collective labor rights is useful for several reasons. For one, it draws attention to the collective, unlike studies that emphasize the existence of individual labor rights. Empirically trade unions solve Hayes, Lydia, et al. “Trade Unions and Economic Inequality.” Institute of Employment Rights Journal, vol. 4, no., Pluto Journals, 2021, pp. 118–41, https://doi.org/10.13169/instemplrighj.4.0.0118. AK As noted above, trade unions rely on social solidarity and promote the collective welfare of members; this means improving wages through greater equality in wage bargaining. Extensive research has found that collective bargaining reduces economic inequality and is therefore beneficial for low and middle-income earners. In industries where trade union membership has halved (and where sectoral bargaining has ceased), the reverse is true and it has been proven that incomes are lowered dramatically. Studies from Canada, the US, and the UK all indicate that wage inequality increases as union influence declines.53 Academics have observed that countries with strong unions and/or a ‘decent’ minimum wage are less vulnerable to rising economic inequality.54 Unions broadly improve society, but they need a strong right to strike in order to be effective. James Myall, 2019, Right To Strike Would Level The Playing Field For Public Workers, With Benefits For All Of US, Maine Center for Economic Policy,https://www.mecep.org/blog/right-to-strike-would-level-the-playing-field-for-public- workers-with-benefits-for-all-of-us/. The right of workers to organize and bargain with their employer benefits all Mainers. Collective bargaining leads to better wages, safer workplaces, and a fairer and more robust economy for everyone — not just union members. The right to strike is critical to collective organizing and bargaining. Without it, Maine’s public employees are unable to negotiate on a level playing field. Maine’s Legislature is considering a bill that would give public-sector workers the right to strike. MECEP supports the legislation, and is urging legislators to enact it. The right to strike would enable fairer negotiations between public workers and the government. All of us have reason to support that outcome. Research shows that union negotiations set the bar for working conditions with other employers. And as the largest employer in Maine, the state’s treatment of its workers has a big impact on working conditions in the private sector. Unions support a fairer economy. Periods of high union membership are associated with lower levels of income inequality, both nationally and in Maine. Strong unions, including public-sector unions, have a critical role to play in rebuilding a strong middle class. Unions help combat inequities within work places. Women and people of color in unions face less wage discrimination than those in nonunion workplaces. On average, wages for nonunionized white women in Maine are 18 percent less than of those of white men. Among unionized workers, that inequality shrinks to just 9 percent. Similarly, women of color earn 26 percent less than men in nonunionized jobs; for unionized women of color, the wage gap shrinks to 17 percent.i All of us have a stake in the success of collective bargaining. But a union without the right to strike loses much of its negotiating power. The right to withdraw your labor is the foundation of collective worker action. When state employees or teachers are sitting across the negotiating table from their employers, how much leverage do they really have when they can be made to work without a contract? It’s like negotiating the price of a car when the salesman knows you’re going to have to buy it — whatever the final price is. Research confirms that public-sector unions are less effective without the right to strike. Public employees with a right to strike earn between 2 percent and 5 percent more than those without it.ii While that’s a meaningful increase for those workers, it also should assuage any fears that a right to strike would lead to excessive pay increases or employees abusing their new right. LD 900, “An Act to Expand the Rights of Public Employees Under the Maine Labor Laws,” ensures that Maine’s public-sector workers will have the same collective bargaining rights as other employees in Maine. The bill would strengthen the ability of Maine’s public-sector workers to negotiate, resulting in higher wagers, a more level playing field, and a fairer economy for all of us. Greater strike frequency reduces income inequality, with spillover effects that unions without the strike can't achieve Beth Rubin, 1998, Inequality In The Working Class: The Unanticipated Consequences Of Union Organization And Strikes. ILR Review 41:4, https://www.jstor.org/stable/2523590?seq=1#metadata_info_tab_contents This paper has examined the effects of union density and strike frequency on the distribution of income in the United States during the post-World War II period. Previous research has generated contradictory conclusions about the relationships between unions and income inequality. Some studies have found evidence that unions serve to equalize the distribution of economic rewards (for example, Freeman and Medoff 1984). Others have found that unions increase inequality in the working class (see Form 1985). The research presented here suggests that both conclusions contain some truth. Most generally, the findings indicate that the impact of union density on income inequality is ambiguous and the impact of strikes is progressive. More specifically, these data suggest that al- though unions decrease inequality in total income, their impact on earned income is mixed: wage and salary gains due to increased union density accrue both to workers who are already among the most prosperous and to those who are at the lowest end of the income distribution (see Table 3). These gains are at the expense of workers who are in the middle of the income distribution, many of whom are probably not unionized (see Table 1). The different observed effects of union density on total and earned income may, in part, reflect the influence of variables (for example, firm size and business failure rate) that were excluded from the analysis because of collinearity problems; during depressed economic periods the government may play a greater role in redistributing resources. Strikes, on the other hand, decrease inequality generally and appear to damage the economic standing of those workers who occupy the most privileged positions within the working class and to benefit those who are less well off. The finding of a differential impact of unions and strikes on income distribution is consistent with the argument, and the finding of some past research (Rubin 1986), that these are analytically distinct working-class behaviors, and it also raises questions that this study cannot answer. The data here do not permit identification of the specific groups represented by strikers or union members, information that would help in explaining the discrepancy between the union and strike effects. What the data do tell us is that those workers who “win” from increased unionization are not the same workers who “win” from strikes. It may well be that strong, highly institutionalized unions with a highly skilled membership are able to extract greater economic gains from their employers than can either other unions or nonunionized labor (Form 1985). Strong unions may also be better able both to influence political actors to increase com- ponents of the citizen wage (see Table 2) and generally to raise the wage floor through threat and spillover effects (see Freeman and Medoff's 1984 summary). The workers in such unions may differ greatly from those who strike to improve their economic position. In short, different actors may well reap different rewards from different actions. The data in this study do not speak directly to this issue, they only whisper of it.
12/3/21
SO - MSF AC
Tournament: St Marks | Round: 1 | Opponent: Southlake Carroll EP | Judge: Danielle Dosch Advantage IP undermines competition and keeps medicine prices high. MSF ’17 – Médecins Sans Frontières Doctors Without Borders - Médecins Sans Frontières (MSF) is an international, independent, medical humanitarian organisation that delivers emergency aid to people affected by armed conflict, epidemics, healthcare exclusion and natural or man-made disasters., “A Fair Shot for Vaccine Affordability: Understanding and addressing the effects of patents on access to newer vaccines,” September, 2017. Accessed Aug. 12, 2021. https://msfaccess.org/sites/default/files/2018-06/VAC_report_A20Fair20Shot20for20Vaccine20Affordability_ENG_2017.pdf AT Intellectual property undermines competition and keeps prices high¶ As MSF has seen repeatedly for medical products critical to our operations, competition among multiple manufacturers is a proven way to reduce prices and increase access. Without competition, single suppliers can set prices high, and limited supply options leave vulnerabilities, including dependence on a sole manufacturer’s ability to maintain consistent supply. The effects of IP monopolies like patents on competition and supply for pharmaceutical products are well documented.11,12,13 Yet, as increasingly recognised, and discussed in more detail within this document, patent-based monopolies can also be a barrier in the field of vaccine production and have posed challenges to vaccine development for decades.¶ Traditional narrative of technology transfers and lack of consideration of patent barriers ¶ Prior experiences of developing vaccines for diphtheria, whole-cell pertussis, polio, measles, mumps, influenza, rubella, and yellow fever in World Bank-classified low- and middle-income countries had suggested that patents do not play a major role in modifying the behaviour of vaccine manufacturers. Historically, these vaccines have been developed using conventional egg-based and cell culture-based methods generally not protected by patents. In these cases, the process of manufacturing and key ‘know how’* was considered a barrier to entry for new competitors.14¶ When looking at the manufacturing experiences of some older vaccines, this perception is an oversimplification. The development of the hepatitis B vaccine, for example, dating back nearly half a century, faced patent barriers resulting in monopolies and high prices.15 The two manufacturers of recombinant hepatitis B vaccines, Merck and SmithKline Beecham, needed licences to more than 90 patents from universities, public institutes and private companies to produce their vaccines. Despite the contributions of publicly funded RandD, product prices at introduction were as high as $40 per dose for this 3-dose regimen (equivalent to more than $87 per dose in real terms in 2016).¶ Patents are increasingly an issue for development of newer vaccines¶ Patent activity in the field of vaccine development and manufacturing has been increasingly recognised as problematic over the past 15 years, according to manufacturers interviewed for this report. International organisations with vaccines expertise such as WHO and Gavi, the Vaccine Alliance, have similarly noted that patent thickets are an increasing concern for vaccines.16¶ For medical products such as PCV and HPV vaccines, patent barriers can slow the development process, increase costs, increase uncertainty and deter or even block other manufacturers considering entering the market.17 A recent analysis by Chandrasekharan et al. found 106 Patent Cooperation Treaty (PCT) applications “potentially relevant to the manufacturing of pneumococcal vaccines”† and 93 patents applications “relevant to the manufacturing of HPV vaccines.”18¶ The patent applications and discussions with manufacturers indicate that broad monopolies are being pursued for these vaccines, through tactics such as using overly general language in patent claims concerning the scope of the inventions. According to national criteria, many of these patents or applications could be challenged or rejected due to their weak technical merits. With patents sought for PCV and HPV vaccine technology in major and emerging markets, like Brazil, China, Europe, India, and the US, governments and other stakeholders seeking to encourage competition and access to affordable vaccines must consider how to mitigate the constraints that pending and granted patents in developing countries place on the ability of potential competitor vaccine manufacturers to develop or sell competitor vaccines.¶ Patents undermine competition throughout PCV and HPV vaccine manufacturing and beyond¶ Patents can act as barriers throughout vaccine development, manufacturing and administration processes. PCV and HPV vaccine products are protected by a series of patents and patent applications, covering all aspects including starting materials, composition, process technologies, and methods of using vaccines, including age groups, vaccine presentations and schedules. Potential competitor vaccine manufacturers considering entering the market may face patent challenges “in any step of the development process starting from preclinical RandD, to scale up, formulation and licensure in the markets of choice, and hence may alter their decision pathways… at each step.”19¶ The typical strategy for a vaccine manufacturer seeking a patent monopoly is to use broad, non-specific claim language to define what they claim is the invention. Many of those patents and applications do not merit patent protection according to national laws, and many are used mainly to maximise the scope of monopoly.¶ Starting materials¶ Starting materials patents cover the inputs/initial ingredients for making a vaccine, including various chemical reagents, host cells, vectors, and DNA and/or RNA sequences of various types. These inputs are highly likely to be required for vaccine production. If the rights to use these materials in vaccine manufacturing are not obtained by a company, it may be very difficult to ‘design around’ the need for these materials. These materials have often been patented years ago and they may now be in the public domain, as is the case for PCV and HPV vaccines.¶ Several patent applications were filed on HPV vaccine starting materials from the mid-1990s. For instance, Merck filed a patent application on the basic HPV DNA,20 covering the most common antigen types HPV 16 and HPV 18. The application attempts to protect recombinant DNA sequences encoding the important antigenic proteins of papillomavirus and purified virus-like particles comprised of the recombinant proteins. It also tries to cover the methods of making and using the recombinant proteins. Merck additionally filed a patent application seeking monopoly protection over virus-like particles containing HPV 18.21 Where granted as claimed, these patents could block anyone who plans to develop alternative HPV vaccines during the patent term. These two Merck applications, where granted, should have started to expire around the world beginning in 2015-2016.¶ A number of newer patent applications since the 2000s on HPV vaccines are also related to starting materials. It is a common practice to file such ‘second-generation’ applications to seek additional commercial advantages. For instance, GSK filed a patent application22 claiming modified DNA sequences of HPV which provide enhanced levels of expressed antigen. This patent would expire in 2023 where granted. Another example is a GSK patent application23 related to cross-reactivity, where HPV 16 and HPV 18-containing constructs can be used in a vaccine that protects against other HPV antigens besides 16 and 18. The detailed effects of these newer patent applications on follow-on development of alternative HPV vaccines require further analysis.¶ Vaccine composition¶ Vaccine composition patents typically seek to cover the resulting combination of immunologically important parts of the vaccine, plus associated materials, such as adjuvants, buffers and preservatives. These types of patents can potentially have strong blocking effects.¶ One of the key patents that Pfizer is seeking for its PCV13 product relates to the vaccine’s composition.24 See more details on this PCV13 patent application and why it represents an unwarranted obstacle to pricelowering competition for PCV in the PCV13 patent opposition case study.¶ There are numerous other examples of vaccine composition patents and these may also warrant further analysis for the effects they may have on competition. For example, Pfizer, GSK and other companies have further filed a series of patent applications claiming different aspects of PCV compositions including those covering up to 20 and 26 valent PCV vaccines.25¶ Process technologies¶ Patents related to vaccine process technologies grant monopolies on the way a vaccine is manufactured. The specific manufacturing methods depend on the type of vaccine. Many different patents and patent applications have been identified that cover or attempt to cover various aspects of vaccine process technologies. ¶ For example, basic conjugation technology needed for PCV manufacturing is patent protected in at least six countries.26 This patent is broad and non-specific, blocking competitors from using a general process for combining several vaccine elements (a polysaccharide, e.g., derived from a Pneumococcus, activated with a specific organic compound and then joined to a carrier protein) to obtain a conjugated immunogenic product. These patents have already begun to expire as of 2016. Until expiry, a vaccine manufacturer wanting to offer a more affordable PCV is required to address this barrier in countries where the patent has been filed or granted.¶ Some other examples of patents filed by different applicants claiming different process technologies related to PCV production may also warrant further analysis to assess their potential impact on competition for PCV vaccines.27¶ Methods of using vaccines¶ ‘Methods of use’ patents seek a monopoly on the way a product is used, for example how a vaccine is administered to children. Depending on the specific claim language, this can include patents on various vial presentations, dose regimens, populations or age groups covered, other elements related to the presentation and packaging of the vaccine itself, or the use of the vaccine in people.¶ These patents are highly problematic because they may undermine the ability of Ministries of Health and clinicians to practise medicine and immunise children in the most appropriate way, free from any potential patent infringement risks. Additionally, these patents may also make potential competitors liable if their product labels and package inserts include information on dosage regimens or methods of use that are under the scope of the concerned patents. This can be the case even if more affordable competitor vaccine products themselves do not infringe on an originator’s patents on a given vaccine.¶ One example of this is a GSK patent application28, which essentially seeks a monopoly on administering PCV after a child has received tetanus and/or diphtheria vaccines.* This ‘preimmunisation’ claim term is particularly broad; many national immunisation programmes could have a national vaccination protocol through which a child may receive tetanus or diphtheria vaccines before getting PCV.¶ If granted, this patent may have a strong blocking effect on the use of any alternative PCV in national immunisation schedules. GSK has applied for this PCV patent in Great Britain (withdrawn in 2011), Brazil, Eurasian Patent Organisation and Morocco.29 The application was also filed, but subsequently withdrawn, in various other jurisdictions, including Australia, Canada, China, Germany and the European Patent Office, South Korea, and abandoned in India, following pre-grant opposition.30 It has already been granted in South Africa.31¶ Patents related to age groups¶ Patent claims can also cover specific age groups to which the vaccine can be administered. If granted, these patents can restrict competition by blocking other manufacturers from selling vaccines for administration to the specified (and likely necessary) age groups. For example, the European Patent Office granted a patent32 to GSK for a method of using a ‘two dose’ HPV16/18 vaccine.33 The patent application includes a patent claim stating that the vaccine is formulated for administration ‘to a subject 14 years of age or below’.34 It indicates a monopoly on immunising people who are 14 years old or younger, which covers the full age range of girls recommended by WHO to receive HPV vaccines.35 This may well be a patent that blocks competition in Europe and prevents competitor manufacturers from offering more affordable versions of HPV vaccines that protect against these two critical strains of HPV. In its PCT application36, the initial claims of the equivalent patent are even broader, covering the use of the concerned method for females aged ‘25 years or under’, ‘9 to 25 years’, ‘9 to 14 years’, ‘15 to 19 years’ and ‘20 to 25 years’, thereby seeking to cover all possible vaccination schedules for the full ranges of ages for whom HPV vaccine would be most effective.¶ Patents related to vaccination schedule and presentation¶ Dose regimens are formalised schedules by which medicines or vaccines are administered, including the dose of the vaccine, the number of doses in a period of time and the time between doses. The patenting of these regimens, including for vaccines, effectively grants a patent holder a monopoly that inhibits the development of competitor products that may need to be administered in the same or a similar dosing regimen, and undermines the ability of medical professionals to prescribe the most medically sound regimens based on health needs.¶ For example, a GSK patent application on the HPV vaccine37 contains very broad claims. The technology in this GSK patent application covers both bivalent* and quadrivalent† HPV vaccines and claims a process of administering a ‘two-dose regimen’ consisting of a first dose and a second dose, wherein both doses can be either bivalent or quadrivalent, covering all virus types causing cervical cancer. It is sufficiently broad to affect manufacturers who intend to move towards two-dose regimen administration for their bivalent or quadrivalent HPV products, while a two-dose schedule is currently recommended by WHO for HPV.38 This patent application has been issued in Europe39 for the ‘two-dose’ bivalent HPV vaccine, and the vaccine was approved for marketing by the European Commission in December 2013. Applications have also been filed in Australia, Canada, China, India, New Zealand, South Korea and the US. It has been withdrawn in the Philippines and refused in Ukraine.40¶ In other situations, broad claims in patent applications could also seek monopoly protection over the vial presentation and carry concerning implications for the launch of alternative versions of the vaccine by followon manufacturers. Vial presentation refers to the format of the vaccine, in terms of the number of doses, the volume and the weight contained within one unit of production. For example, it could refer to a single-dose pre-filled syringe, a 10-dose vial with 2 ml per dose, a 20-dose vial and so on.¶ Multi-dose vial presentations, where more than one dose of the vaccine is contained in a vial, are an advantage for developing country immunisation programmes because they decrease cold chain capacity requirements and ease vaccination programme logistics. Multi-dose vials, in general, also have a lower price per dose compared to single-dose vial and/or syringe formats. Pfizer filed a patent application concerning a multidose vial PCV13,41 which includes broad claims related to specific presentations, including pre-filled vaccine delivery devices (such as a syringe) as well as a vial container. If granted as claimed, it might effectively block the development and launching of alternative versions of multi-dose vial PCV13 and secure the market of using such presentations (multi-dose vials) for only Pfizer’s product. The monopoly associated with this patent could mean that public health programmes looking to switch to multi-dose vial PCV13 or a pre-filled ‘device,’ such as a pre-filled syringe, would either have to stay with a single dose vial format or have to use Pfizer’s version only. This patent has been granted in Australia, South Korea, the US and by the European Patent Office.42 An equivalent application has also been filed in China43 and India44, where the applications are pending examination.¶ Summary¶ There are many different aspects of vaccines that are being patented, in many cases undeservingly so per national laws. These patents pose significant barriers for other manufacturers to enter the market and contribute to a competitive environment that could help lower prices and increase access. Taken together, these patents indicate that throughout the vaccine development process and beyond, patents pose a threat to affordable vaccines by impeding, and possibly outright blocking price-lowering follow-on competition. In some cases, potential competitors have opportunities to address and overcome these barriers providing they have the time, resources, technical know-how and an accurate assessment of the vaccine patent landscape. Millions, including many children, die from pneumonia and HPV, but low-income countries and families can’t afford the vaccines to prevent them. MSF ’17 – Médecins Sans Frontières Doctors Without Borders - Médecins Sans Frontières (MSF) is an international, independent, medical humanitarian organisation that delivers emergency aid to people affected by armed conflict, epidemics, healthcare exclusion and natural or man-made disasters., “A Fair Shot for Vaccine Affordability: Understanding and addressing the effects of patents on access to newer vaccines,” September, 2017. Accessed Aug. 12, 2021. https://msfaccess.org/sites/default/files/2018-06/VAC_report_A20Fair20Shot20for20Vaccine20Affordability_ENG_2017.pdf AT Through our operations, MSF teams vaccinate thousands of vulnerable children each year against pneumonia, the number one killer of children under five years worldwide. MSF is also starting to provide vaccinations against human papillomavirus (HPV), a sexually transmitted infection that can lead to cervical cancer, one of the leading cancer killers of women in developing countries. The World Health Organization (WHO) recommends vaccination with the pneumococcal conjugate vaccine (PCV) for all children worldwide and HPV vaccination for girls worldwide. However, these vaccines are often unaffordable for developing countries. Millions of children around the world are left unprotected from pneumonia or HPV when Ministries of Health cannot afford to incorporate these vaccines into their national immunisation programmes.¶ Pneumonia¶ Globally, pneumonia kills nearly one million children every year.2 Children in crisis-affected contexts are particularly susceptible to pneumonia, and MSF medical teams often see its deadly effects in our health facilities. PCV can prevent many cases of pneumonia and is currently manufactured for children by just two companies: Pfizer and GlaxoSmithKline (GSK). Unfortunately, PCV is priced out of reach of many parents, governments and treatment providers, due in part to high prices caused by a lack of sufficient competition. Approximately one third of the world’s countries have not been able to introduce PCV because of its high price.3 Millions of vulnerable children living in countries such as Jordan, Thailand and the Philippines are left without affordable access to this life-saving vaccine. According to 2015 WHO/UNICEF estimates, 60 of the world’s infants (81.6 million) were not receiving PCV in 2015, either because they lived in one of 55 countries that had not yet introduced the vaccine, or they were not being reached by the routine immunisation services in their country.¶ MSF provides PCV through our work in countries such as Central African Republic, Ethiopia, Greece, South Sudan, Syria and Uganda, among others. From 2009 to 2014, MSF negotiated with Pfizer and GSK to obtain a sustainable, affordable price for PCV, exceptionally accepting a limited-term donation, with agreement from both Pfizer and GSK that they would work on longer-term solutions to improve affordability. In the absence of such a solution, MSF and other humanitarian organisations continued to struggle to purchase PCV at an affordable price. For example, in 2016 MSF paid 60 Euros (US$68.10) for one dose of the Pfizer product to vaccinate refugee children in Greece – 20 times more than the lowest PCV price offered by Pfizer and GSK. ¶ In 2015, faced with the impossibility of obtaining an affordable price, MSF launched a public campaign – A Fair Shot – calling on both companies to lower the price of PCV for humanitarian use and in all developing countries. Because of this pressure, in late 2016, both Pfizer and GSK finally agreed to extend their lowest global price to humanitarian organisations vaccinating in emergencies, but not to developing countries more broadly.4 Many governments, providers, and parents still struggle to afford PCV.¶ Human papillomavirus¶ The World Health Organization (WHO) estimates that more than one million women are living with cervical cancer worldwide, most often as a “consequence of a long-term infection with human papillomavirus (HPV).” WHO also notes that most cases occur in developing countries;5 in 2012, more than a quarter of a million women died from cervical cancer in developing countries.6¶ Two companies, GSK and Merck, manufacture vaccines that protect against two (GSK), four and nine (Merck) different types of HPV. Types 16 and 18 are associated with 71 of cases of cervical cancers and are present in all three vaccines.7 Despite the importance of this vaccine, by mid-2016, only 65 countries had introduced HPV vaccines.8 Prices for the vaccines range from $4.50 per dose at the lowest global price up to $193 per dose in the US private sector.9 In contrast, based on peer-reviewed manufacturing estimates, HPV vaccines could be manufactured for as little as $0.50 to $0.60 per dose.10¶ MSF provides cervical cancer screenings and HPV vaccines in some projects, for example in the Philippines, and is preparing to do so in Zimbabwe. 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 In 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. We have a duty to assist others when the tradeoff is morally insignificant. This simple precept is more compelling than arcane moral reasoning or tortured negative fantasizing about remote catastrophes. If you came across a drowning child, would you wade in to save them or contemplate the possibility that you might cause nuclear war? Singer ’72 - Peter Singer Prof. Bioethics at Princeton “Famine, Affluence, and Morality” Philosophy and Public Affairs, vol. 1, no. 1 Spring 1972 AT My next point is this: if it is in our power to prevent something bad from happening, without thereby sacrificing anything of comparable moral importance, we ought, morally, to do it. By "without sacrificing anything of comparable moral importance" I mean without causing anything else comparably bad to happen, or doing something that is wrong in itself, or failing to promote some moral good, comparable in significance to the bad thing that we can prevent. This principle seems almost as uncontroversial as the last one. It requires us only to prevent what is bad, and to promote what is good, and it requires this of us only when we can do it without sacrificing anything that is, from the moral point of view, comparably important. I could even, as far as the application of my argument to the Bengal emergency is concerned, qualify the point so as to make it: if it is in our power to prevent something very bad from happening, without thereby sacrificing anything morally significant, we ought, morally, to do it. An application of this principle would be as follows: if I am walking past a shallow pond and see a child drowning in it, I ought to wade in and pull the child out. This will mean getting my clothes muddy, but this is insignificant, while the death of the child would presumably be a very bad thing. The uncontroversial appearance of the principle just stated is deceptive. If it were acted upon, even in its qualified form, our lives, our society, and our world would be fundamentally changed. For the principle takes, firstly, no account of proximity or distance. It makes no moral difference whether the person I can help is a neighbor's child ten yards from me or a Bengali whose name I shall never know, ten thousand miles away. Secondly, the principle makes no distinction between cases in which I am the only person who could possibly do anything and cases in which I am just one among millions in the same position. Solvency The member nations of the World Trade Organization ought to reduce intellectual property protections for medicines using the mechanisms described by MSF ’17: MSF ’17 – Médecins Sans Frontières Doctors Without Borders - Médecins Sans Frontières (MSF) is an international, independent, medical humanitarian organisation that delivers emergency aid to people affected by armed conflict, epidemics, healthcare exclusion and natural or man-made disasters., “A Fair Shot for Vaccine Affordability: Understanding and addressing the effects of patents on access to newer vaccines,” September, 2017. Accessed Aug. 12, 2021. https://msfaccess.org/sites/default/files/2018-06/VAC_report_A20Fair20Shot20for20Vaccine20Affordability_ENG_2017.pdf AT Countries can take a variety of steps to promote competition in vaccine manufacturing and help mitigate the complex patent thickets that could block, delay or increase uncertainties around access to multiple sources of vaccines. Governments should adopt public health-oriented IP policies, making full use of TRIPS flexibilities in both substantive and procedural aspects of national patent laws. Countries should: • Encourage and accelerate follow-on development and competition of vaccines and vaccine technologies through the introduction and use of broad Bolar exemptions. This will support an early start for research and clinical studies by follow-on manufacturers, and support independent follow-on research and development. • Apply strict patentability criteria for vaccine and vaccine technologies in patent examination and judicial proceedings. Countries should closely scrutinise patent applications concerning common methods of treatment, dosage forms and claims concerning specific age groups. Countries should reject trivial changes to known vaccine technologies, or composition patent applications that merely present the assembly of more ingredients using a known technology. • Implement robust pre- and post-grant opposition procedures in national patent law systems that allow greater public scrutiny and opportunities to challenge unmerited patent applications from an early stage. Procedures that allow third-party observation but lack a mandatory hearing requirement could be improved to provide better transparency and accountability to the public. • Improve use of compulsory licencing. Governments should strengthen the mechanisms of issuing compulsory licences to facilitate the most expedited access to multiple sources of vaccines and to safeguard public health. • Strengthen technical capacity to ensure patent examiners apply strict patentability criteria and screen out unmerited applications in a timely manner. This will provide clarity on the patent landscape concerning important vaccines and technologies. • Increase transparency of patent office filings to enable third parties to better understand the IP landscape, especially through procedures to promote disclosure of non-proprietary biological qualifier names74 of vaccines. Prospective manufacturers will be able to make decisions more efficiently if they understand the IP landscape clearly. Government procurement decision making will also be improved by addressing the current information asymmetry. • Make full use of LDCs’ exemption from mandatory patent protection to accelerate access to quality assured follow-on new vaccines and encourage competition to improve affordability of vaccines. • Demand that international organisations like WHO, Gavi, the Pan American Health Organization (PAHO) and the United Nations Children’s Fund (UNICEF) improve technical support for countries to: identify legal barriers, use flexibilities under IP laws and improve transparency of patent information to facilitate follow-on development and foster robust competition for new vaccines.75 The neoliberal drive to privatization created the tragedy of the anti-commons, stifling innovation through excessive protection of ever more segmented intellectual property. Heller and Eisenberg ’98 - Michael Heller Prof. of Property Law, Columbia Law School and Rebecca S. Eisenberg Prof. of Patent Law, Michigan Law, “Can Patents Deter Innovation? The Anticommons in Biomedical Research,” SCIENCE, VOL. 280, P. 698, 1998 (1998). https://scholarship.law.columbia.edu/faculty_scholarship/1158 AT Since Hardin’s article appeared, biomedical research has been moving from a commons model toward a privatization model (4). Under the commons model, the federal government sponsored premarket or “upstream” research and encouraged broad dissemination of results in the public domain. Unpatented biomedical discoveries were freely incorporated in “downstream” products for diagnosing and treating disease. In 1980, in an effort to promote commercial development of new technologies, Congress began encouraging universities and other institutions to patent discoveries arising from federally supported research and development and to transfer their technology to the private sector (5). Supporters applaud the resulting increase in patent filings and private investment (6), whereas critics fear deterioration in the culture of upstream research (7). Building on Heller’s theory of anticommons property (3), this article identifies an unintended and paradoxical consequence of biomedical privatization: A proliferation of intellectual property rights upstream may be stifling life-saving innovations further downstream in the course of research and product development.¶ The Tragedy of the Anticommons¶ Anticommons property can best be understood as the mirror image of commons property (3, 8). A resource is prone to overuse in a tragedy of the commons when too many owners each have a privilege to use a given resource and no one has a right to exclude another (9). By contrast, a resource is prone to underuse in a “tragedy of the anticommons” when multiple owners each have a right to exclude others from a scarce resource and no one has an effective privilege of use. In theory, in a world of costless transactions, people could always avoid commons or anticommons tragedies by trading their rights (10). In practice, however, avoiding tragedy requires overcoming transaction costs, strategic behaviors, and cognitive biases of participants (11), with success more likely within close-knit communities than among hostile strangers (12– 14). Once an anticommons emerges, collecting rights into usable private property is often brutal and slow (15).¶ Privatization in postsocialist economies starkly illustrates how anticommons property can emerge and persist (3). One promise of the transition to a free market was that new entrepreneurs would fill stores that socialist rule had left bare. Yet after several years of reform, many privatized storefronts remained empty, while flimsy metal kiosks, stocked full of goods, mushroomed on the streets. Why did the new merchants not come in from the cold? One reason was that transition governments often failed to endow any individual with a bundle of rights that represents full ownership. Instead, fragmented rights were distributed to various socialist-era stakeholders, including private or quasi-private enterprises, workers’ collectives, privatization agencies, and local, regional, and federal governments. No one could set up shop without first collecting rights from each of the other owners.¶ Privatization of upstream biomedical research in the United States may create anticommons property that is less visible than empty storefronts but even more economically and socially costly. In this setting, privatization takes the form of intellectual property claims to the sorts of research results that, in an earlier era, would have been made freely available in the public domain. Responding to a shift in U.S. government policy (4) in the past two decades, research institutions such as the National Institutes of Health (NIH) and major universities have created technology transfer offices to patent and license their discoveries. At the same time, commercial biotechnology firms have emerged in research and development (RandD) niches somewhere between the proverbial “fundamental” research of academic laboratories and the targeted product development of pharmaceutical firms (7). Today, upstream research in the biomedical sciences is increasingly likely to be “private” in one or more senses of the term—supported by private funds, carried out in a private institution, or privately appropriated through patents, trade secrecy, or agreements that restrict the use of materials and data.¶ In biomedical research, as in postsocialist transition, privatization holds both promises and risks. Patents and other forms of intellectual property protection for upstream discoveries may fortify incentives to undertake risky research projects and could result in a more equitable distribution of profits across all stages of RandD. But privatization can go astray when too many owners hold rights in previous discoveries that constitute obstacles to future research (16). Upstream patent rights, initially offered to help attract further private investment, are increasingly regarded as entitlements by those who do research with public funds. A researcher who may have felt entitled to coauthorship or a citation in an earlier era may now feel entitled to be a coinventor on a patent or to receive a royalty under a material transfer agreement. The result has been a spiral of overlapping patent claims in the hands of different owners, reaching ever further upstream in the course of biomedical research. Researchers and their institutions may resent restrictions on access to the patented discoveries of others, yet nobody wants to be the last one left dedicating findings to the public domain.¶ The problem we identify is distinct from the routine underuse inherent in any wellfunctioning patent system. By conferring monopolies in discoveries, patents necessarily increase prices and restrict use—a cost society pays to motivate invention and disclosure. The tragedy of the anticommons refers to the more complex obstacles that arise when a user needs access to multiple patented inputs to create a single useful product. Each upstream patent allows its owner to set up another tollbooth on the road to product development, adding to the cost and slowing the pace of downstream biomedical innovation.
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.