Prison labor and the paradox of paid nonmarket work

Abstract

Purpose – To use insights from economic sociology to analyze how U.S. employment law understands and regulates the relationship between prison labor and conventional employment. Methodology – Legal analysis of all published court opinions deciding whether federal employment laws such as the minimum wage apply to prison labor. Findings – Courts decide whether prison labor is an “employment relationship” by deciding whether it is an “economic” relationship. Most interpret prison labor as noneconomic because they locate it in a nonmarket sphere of penal relationships. A minority of courts use a different conception of the economy, one which interprets prison labor as a form of nonmarket work. Implications – The economic character of prison labor may be articulated using the same theoretical perspectives and analytical techniques developed to analyze family labor as economically significant nonmarket work. Doing so, however, too readily accepts the market/nonmarket distinction. Given the thoroughly social character of market work, prison labor's highly structured, institutionally specific character does not preclude characterizing it as market work, and some of its features support interpreting it as such. In this legal context, identifying practices as economic or not, and as market or not, has concrete consequences for the actors themselves. Rather than using market/nonmarket distinctions as analytical tools, scholars might treat actors' designation of an economic practice as part of a market or not as a site of conflict, subject to institutionalization, and worthy of sociological study.