Earlier this month, Vice President Kamala Harris’ campaign dropped an issues page detailing the Democratic candidate’s priorities if elected. One brief but important point: Harris’ platform commits to ending the federal subminimum wage for disabled workers.
Since the establishment of a federal minimum wage in 1938, an exception has allowed employers, through a certificate system, to pay disabled workers much less than the national minimum of $7.25 an hour—sometimes as little as 25 cents. It’s a practice that 25 states, most recently Ohio, have introduced or enacted legislation to phase out. If Harris succeeds, at least 40,000 workers across the country will see a wage rise. But for most disabled workers earning below minimum wage, it won’t make a difference.
That’s because workers in prison—including disabled ones—are subject to another subminimum wage, which neither candidate aims to roll back. Imprisoned workers in all 50 states, including the 17 where prison work is enforced, can earn pennies an hour, or even nothing at all, as a 2022 American Civil Liberties Union report highlights. In Louisiana, people working in prisons can make as little as 2 cents an hour; if they worked 30 hours each week, they would earn just over $30 annually.
Federally, and in seventeen states, “incarcerated people under law are required to work, and they actually cannot opt out of that work.”
Kate Caldwell, director of research and policy at Northwestern University’s Center for Racial and Disability Justice, told me that more than half of incarcerated people in US prisons have a disability, including psychiatric disabilities. Given that Black and Latino people are disproportionately incarcerated, disabled people of color face the brunt of low prison wages.
“Most incarcerated individuals want to work,” Caldwell said, “but they want to earn a wage.”
Caldwell explained that getting rid of subminimum wage for disabled people in prison involves different legal frameworks: Ending the practice for disabled people in sheltered workshops, as workplaces allowed to engage in the practice are known, would mean amending the Fair Labor Standards Act—whereas ending subminimum wages for incarcerated people would mean requiring workers in prison to be recognized as employees under federal law, which they aren’t.
Federally, and in the seventeen states where it is mandatory, “incarcerated people under law are required to work, and they actually cannot opt out of that work,” Caldwell told me, “nor can they opt out of work when there are dangerous conditions in most states.” This includes fighting wildfires, a strikingly common form of prison labor. Work done while in prison also does not count toward work requirements for Social Security Disability Insurance, Caldwell noted.
On the other hand, as the ACLU report describes, some disabled people in prisons are denied the opportunity to work when they want to. The extent of the problem is hard to capture, Caldwell says, given the lack of data on disability and the criminal justice system—but regardless, it’s “in violation of the ADA and Section 504 of the Rehabilitation Act,” Caldwell said. “It’s either because of the stigma that disabled people can’t work, or the perceived cost of providing accommodations.”
Being incarcerated can also be incredibly expensive: health care is pricey, poor, and limited, not to mention financing your own incarceration, essentials from the commissary, paying restitution, continuing to pay child support, and affording costly phone calls with loved ones.
“There are typically medical co-pays involved in seeing a doctor,” Wanda Bertram, a communications strategist with the Prison Policy Initiative, told me. “For instance, in the Federal Bureau of Prisons, there’s a $2 co-pay every time you request a doctor visit.” That could represent 17 hours of work—and given the health issues that many disabled people experience, the cost can quickly add up.
Bertram raised another issue, one that also comes up in connection with sheltered workshops: whether or not some jobs typically given to prisoners, like making license plates, develop skills that will help them when they leave prison. Bertram and Caldwell both note that many jobs for incarcerated workers also involve essential administrative and maintenance work that keeps their prisons running.
“The largest beneficiary of prison labor is the prison system itself,” Caldwell said. “Those workers are providing over $9 billion of services a year to the prisons where they are incarcerated.”
