On an ordinary day, as most days in prison are, a buzz began circulating throughout Mule Creek State Prison’s E-Facility. Many incarcerated individuals expressed their excitement at the news that had just come down from the secretary of the California Department of Corrections and Rehabilitation (CDCR), Jeffrey Macomber.
In the form of a Notice of Change of Regulations (NCR), followed by an official memorandum, the edict read in part, “Our pay schedule has been the same for 30 years.” Therefore, Macomber was “Pleased to announce wages will increase statewide for the incarcerated workforce beginning April 1, 2024.” However, like most edicts, the devil is in the details.
While many were excited by the news announcing a wage increase, many others were disappointed once they realized that, despite the fanfare of the big announcement, closer inspection revealed that Macomber’s wage increase amounted to a doubling of pennies for some. For others, a slight increase. Still others, a pay decrease.
D. Chapman, for example, has been employed for two years as a Stationary Engineer/Maintenance Mechanic. Before Macomber’s announcement, Mr. Chapman was paid $0.80 an hour. Expecting his wages to double, as indicated by the NCR, Chapman’s wages decreased. He is now being paid $0.70 an hour.
When asked how he felt about Macomber’s announcement, Chapman stated, “Thank you for getting rid of slavery, but now you made us sharecroppers.”
Slavery persists in the CDCR. According to some California legislators, “The California Constitution has explicitly allowed involuntary servitude as punishment for a crime since 1849, more than 15 years before slavery was abolished in the United States; and, more than 150 years after slavery was abolished, correctional institutions continue to rely on the involuntary servitude exception in the California Constitution to demand forced labor from incarcerated people.”
Although some incarcerated individuals did have their wages increased, Secretary Macomber’s announcement did not change the fact that any who refused to work for the extra pennies bestowed upon them would suffer serious consequences.
For an incarcerated individual, refusing to work or quitting one’s job triggers certain disciplinary action. The California Code of Regulations (CCR), Title 15, Division 3, prohibits incarcerated individuals from “refusing to work, pretending illness or otherwise evading attendance.”
Those who do refuse are subject to a multitude of deprivations including, but not limited to, loss of privileges such as denial of access to recreation, family visits and telephone calls.
The most important deprivation, “forfeiture of credit earning,” CDCR’s term for forfeiture of days an incarcerated individual has earned off their prison sentence, results in more time spent incarcerated than one would otherwise spend. Similarly, during slavery, refusal to work was met with serious deprivations as well, albeit much more serious, but deprivations all the same.
Moreover, in its June 27, 2024, passage of Assembly Constitutional Amendment 8 (ACA 8), known as the End Slavery in California Act, the California Legislature declared, “forced labor has no redeeming qualities and is inconsistent with California’s respect for human dignity.”
Speaking of respect for human dignity, R. Wilson has been employed as a Biohazard Porter since 2019. His primary duty, as his job title reveals, is to clean up biohazards in the form of blood that is possibly contaminated with Hepatitis A, B or C, or HIV.
Although Wilson was required to undergo training in the correct cleaning of blood-borne pathogens, his starting wage was a paltry $0.18 an hour. After approximately nine months on the job, his wage topped out at $0.32 an hour.
With Macomber’s announcement, Wilson expected to earn $0.64 an hour. However, he was extremely disappointed when he discovered that his wage had decreased to $0.26 an hour.
“You can’t have my job unless you take a test to get it,” said Wilson.
In order to work as a Biohazard Porter, Wilson had to pass a test demonstrating his proficiency in not only cleaning up blood-borne pathogens, but also the proper containment and disposal of these and other biohazards.
According to ZipRecruiter, an online job search site, the average pay in California for a porter performing similar duties is $14.07 an hour, and some are paid as high as $19.69 and as low as $8.30.
When asked what he thought about his pay decrease, Wilson replied, “It’s wrong to pay me what they do, let alone reducing my pay when they promised to give us a raise.”
Wrong indeed. Sadly, Wilson has no recourse. Had this occurred while employed outside of prison, he could have quit and searched for a better-paying job.
The question is how have some incarcerated workers, after being told their wages would double, wound up receiving wage decreases?
It turns out the CDCR uses a sleight-of-hand trick. For example, according to Secretary Macomber, “In order to increase pay using existing resources, CDCR will change many full-time assignments to half-time.”
This resulted in “75 percent of job assignments” now considered half-time assignments. Thus, although some incarcerated workers received double their slave wages, 75 percent of them saw their hours cut by 57 percent, resulting in a net decrease in their wages.
P. Derosier and J. Peterson are assigned as the Computer and Related Technology (CRT) class Clerk and Teacher’s Aide, respectively. Both went from working seven hours per day to four hours per day.
Prior to the announced “wage increase,” Derosier earned the Technician Level rate of pay, earning between $0.15 and $0.24 per hour. Although post-wage increase, he would have earned between $0.30 and $0.48 per hour, instead, his skill level was reduced to Semi-Skilled and he now earns between $0.22 and $0.36 per hour, resulting in a net wage decrease.
Because of this sleight-of-hand trick, Derosier, Peterson and many other incarcerated workers now receive less pay. Instead of earning a whopping $30 to $50 per month, they now earn a junior-whopping sum of between $17 and $28 per month.
Very few incarcerated individuals are aware that the CDCR had such a trick up its sleeve. The CDCR utilizes Dictionary of Occupational Titles (DOT) Codes to classify the various assignment categories.
Located in §51120.7 of the CDCR’s Operations Manual (DOM), five job categories align with DOT Codes and are assigned varying pay ranges.
Pre-wage increase, they were:
Job Classifications/Skill Levels — Min./Hr. — Max./Hr. — Min./Mo. — Max./Mo.
Leadpersons (DOT Skill Level 9) — $0.32 — $0.37 — $48 — $56
Special Skills (DOT Skill Level 7-8) — $0.19 — $0.32 — $29 — $48
Technician (DOT Skill Level 5-6) — $0.15 — $0.24 — $23 — $36
Semi-Skills (DOT Skill Level 3-4) — $0.11 — $0.18 — $17 — $27
Laborer (DOT Skill Level 1-2) — $0.08 — $0.13 — $12 — $20
Post-wage increase, they are:
Job Classifications/Skill Levels — Min./Hr. — Max./Hr. — Min./Mo. — Max./Mo.
Leadpersons (DOT Skill Level 9) — $0.64 — $0.74 — $48 — $56
Special Skills (DOT Skill Level 7-9) — $0.38 — $0.64 — $29 — $48
Technician (DOT Skill Level 5-6) — $0.30 — $0.48 — $23 — $36
Semi-Skills (DOT Skill Level 3-4) — $0.22 — $0.36 — $17 — $27
Laborer (DOT Skill Level 1-2) — $0.16 — $0.26 — $12 — $20
In order to perform their sleight-of-hand trick, CDCR can arbitrarily change an incarcerated worker’s job classification at will. This is exactly what happened in the case of Wilson, Derosier and many other incarcerated workers.
In one day, many job classifications were changed, but their duties did not. In fact, in at least one case, because of the reduced workforce in the facility dining room, the remaining workforce is now required to pick up the slack by performing the duties of the incarcerated workers who were downsized.
It seems, in this case, double the pay equals double the duties.
Many of the incarcerated do not believe in coincidences. The timing of Secretary Macomber’s NCR was curious.
Why would the office of the secretary of the CDCR, after 30 years, be so magnanimous as to bless the incarcerated souls under its charge with the doubling of their wages?
After all, both our federal and state Constitution deem the incarcerated “slaves of the state.” Based on the facts surrounding the decision to double incarcerated individuals’ wages, it would seem that pragmatism, rather than magnanimity, was a large part of the calculus.
This pragmatism seems to have much to do with the passage of the End Slavery in California Act in September 2023. Less than 30 days after the California Assembly voted to send it to the Senate for concurrence, Secretary Macomber issued his October surprise announcement.
Few citizens of the state of California are aware that forced labor or involuntary servitude is constitutionally permissible for the incarcerated. Article 1, § 6 of the California Constitution provides, “Slavery is prohibited. Involuntary Servitude is prohibited except to punish crime.”
It is this language, and several federal court rulings, that have conspired to deprive California’s approximately 90,000 incarcerated individuals of their status as “employees” that permit them to remain “slaves of the state.”
The End Slavery in California Act represents a culmination of several attempts of California legislators to address the issue of slavery and involuntary servitude of the incarcerated.
Introduced by Senator Bradford (D-Los Angeles) in 2019, Senate Committee Resolution 69 (SCR 69) expressed the Senate’s support for “fair and just wages” for all those incarcerated in California, by stating the following:
“State law should be amended to address the unfair wage compensation and to provide incarcerated persons with base work protections by redefining prison labor as legal employment; now, therefore, be it Resolved by the Senate of the State of California, the Assembly thereof concurring, That the Legislature supports fair and just wages for incarcerated persons working for the Prison Industry Authority, the Division of Juvenile Facilities, and the Department of Corrections and Rehabilitation.”
Three years had passed before the Legislature sought to make its 2019 resolution a reality. In February 2022, Senator Bradford introduced Senate Bill 1371 (SB 1371).
This bill intended to amend the California Penal Code, and would:
“[R]equire the Secretary of the Department of Corrections and Rehabilitation to adopt a five-year implementation schedule to increase the compensation for incarcerated persons engaged in work programs under the jurisdiction of the department. This bill would specify that the increase in compensation is required to, among other things, [allow incarcerated persons to] afford quarterly packages, purchase educational materials, and maintain family connections, as specified.”
Governor Newsom vetoed the bill on Sept. 29, 2022.
Thus, it would seem that with the knowledge of slavery and involuntary servitude’s continued entrenchment in California’s constitution, Governor Newsom’s appointee, CDCR Secretary Macomber, felt safe to appear that he was striking a blow against slavery and involuntary servitude with his announcement of increasing wages, while not actually doing so.
Why would he willingly treat those in his charge, other than involuntary servants forced to labor, under threat of punishment?
According to Macomber, “Work assignments also keep our prisons running. Every prison operates like a small city, resulting in a diverse array of job opportunities.”
His statement represents an understanding that without the forced labor of the incarcerated, the small cities would cease to operate.
This understanding parallels the understanding of former Confederate government officials. In the aftermath of the Civil War, there was an understanding of the need to rebuild the former Confederate states.
Lawmakers and government officials accomplished this with the passage of laws, called “Black Codes,” which essentially criminalized being Black. Armed with the involuntary servitude exception in federal and state constitutions, these officials forced the incarcerated to perform uncompensated labor.
Moreover, Secretary Macomber goes on to state, “Every job is dignified, and workers should be paid for their efforts.”
This statement is difficult to reconcile with the fact that he has failed to repeal CDCR regulations authorizing punishment of incarcerated individuals for their refusal to work for the paltry slave wages they are paid.
Perhaps it is not so difficult to reconcile when one considers that the California Legislature found that, “more than 150 years after slavery was abolished, correctional institutions continue to rely on the involuntary servitude exception in the California Constitution to demand forced labor from incarcerated people.”
However, there is hope that California’s 90,000 incarcerated individuals will finally receive a fair and just wage for their labor.
There is word that the authors of the End Slavery in California Act resubmit the constitutional amendment in 2028, in time for the voters of California to have another opportunity to strike a blow against slavery and involuntary servitude for California’s incarcerated.
By voting “yes,” California will align with seven other states: Colorado, Utah, Nebraska, Alabama, Oregon, Tennessee and Vermont, that have already struck a similar blow, by ending slavery and involuntary servitude in correctional institutions.
A “yes” vote will prohibit the secretary of the CDCR from punishing incarcerated individuals for refusing to work for slave wages. Voting “yes” would mean California’s incarcerated would finally be able to financially support their families, pay child support, provide timely restitution to their victims, contribute to the tax base of California and provide a net savings to California’s taxpayers.
In 2019, research conducted by the California Legislature found:
“People in prison who earn a fair and just wage can contribute to the growth of the economy and to public safety. These contributions to their families, taxes, restitution, and themselves will support the rehabilitative mandate of CDCR and ultimately save the state money by reducing the number of times people reoffend, the number of children in need of social services, and the likelihood of people seeking government assistance.”
In the final calculation, not only would it be the fair, moral and just thing to amend California’s Constitution by removing this last vestige of slavery in the state, it makes financial sense.
Because, as many of us who know the old cliché so well, “If it don’t make dollars, it don’t make sense.”
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