A survey of ORC 5120.56 and ORC 5145.16


Fahd Abdur Razzaaq Mujahideen

November 20, 1997

Buried at line 8009 of Senate Bill 111 lays proposed Ohio Revised Code Section 5120.56. As of this writing, the Bill has passed both Houses of Ohio's Legislature nearly unanimously. A moment's reflection on ORC 5120.56 immediately brings to mind one question: does anybody read this stuff before voting for it?

Compressed to its essence, ORC 5120.56 makes a wonderful sound byte. Under the provision, any funds or assets above $100 will be confiscated from convicts for the purpose of supporting the costs of the prison system.

The provision also calls for creating the necessary bureaucracies for accounting, collection, rule making, and enforcements. In short, hiring more civil servants and increasing the size of government once again.

Costs being built into the provision up front, we might ask whether there might be any return on that investment. With ORC 5120.56 standing alone, the answer must he a resounding, "No."

It is virtually axiomatic that convicts do not have any money. Of all demographic factors, poverty is the one most closely linked to crime. Even though ORC 5120.56 authorizes the Attorney General to seek out and confiscate convicts' assets beyond the reach of prison officials, what assets will be collected from those already impoverished? In the rather rare case of a wealthy person going to prison, can you imagine that his lawyer will fail to protect his assets, or that the prison system will be in line ahead of "fruits of the crime," confiscation laws, ex-wives, dependent children, court costs, attorneys' fees, and past creditors?

What of moneys earned while in prison? The vast majority of convicts receive about $20 a month regardless of whether they work a few hours a day mopping floors, or 100 hour weeks performing skilled maintenance duties. A few hundred convicts make about $100 a month working for State or private industrial enterprises, and a very few earn up to about $500 doing specialized skilled, or hazardous jobs.

Families and friends of convicts do send money. Nobody will be foolish enough to ever send enough money at one time to allow its confiscation. Family and friends do not send money to pay prison costs; they send money to mitigate the realities of prison life.

The law builds in administrative costs. Most of convicts' disposable income is spent at the prison commissary. The profits from the commissary go into a fund which defrays expenses for recreation, education, and similar programs. Those profits will be reduced under ORC 5120-56. Convicts use disposable income to purchase food, and clothing, which is better than that supplied by the prison, as well as cosmetics, and over the counter medications. When convicts' disposable income is reduced, the cost of providing those items will again fall to the system itself. All in all, ORC 5120-56 will increase total costs to the system by more than can ever be collected under its provisions.

Creating a collection department to collect something which does not exist, or which will cease to exist by virtue of any attempt to collect it, may be foolish enough, yet greater hidden costs to society accrue from ORC 5120.56.

In the bad old days, when prison administrators believed their purpose was to reduce crime by taking in criminals and releasing taxpayers as efficiently as practical, there existed a mandatory "going home fund." A portion of every convict's monthly pay was placed in the fund. Adjusted for inflation, an average convict's fund increased by about one week's average working pay each year he was in prison. The convict could not touch the fund for any reason. Upon release he received the contents of the fund. Under that system, the longer a man was in prison and usually the fewer ties he had in the free world, the longer was the period in which he would be able to support himself while finding a job and adapting to the free world again. About 1982, moneys ceased being placed in the fund and a flat $75 was given each convict upon release.

Many convicts do save for the future. Those with funds presently will of course also have the foresight to disperse their funds prior to ORC 5120.56 becoming effective. Little if anything will be collected from those men who attempted to assure their ability to build a law abiding life. But, they will have lost their savings, and ORC 5120.56 will not have taught a good lesson about the fruits of honest labor.

On July 1st, 1996, Senate Bill 2 became law in Ohio. With the exception of "lifers" and a few people with sentences too long to live through, everybody sentenced after that date will get out on a specific date. In time, the same number of people will be released, having served time for the same types of crimes, as are received by the system, every day of the year. How they behave in prison, their intentions, their ability to work, will have nothing to do with their release date. On a specific day, they get dropped off at the nearest bus station to the prison. Under ORC 5120.56, the most any of those men and women will have as they stand in that bus station will be $100 and the clothes on their backs. How long can a person live on $100 in Ohio? In summer, perhaps a few weeks sleeping in parks; in winter, only a day or two. Each of those people will have only three choices: go on immediate emergency public assistance, commit a crime, or die of exposure. Few will opt for death by exposure. In theory, the welfare system is winding down. The victims of the crimes of desperation resulting from ORC 5120.56 will, I am sure, consider the cost of that law entirely too high.

Get a job? Great idea, but it will be two, possibly four weeks before that newly hired ex-con receives his first pay check. Can he even get a job with no work clothes, no transportation, no residence, and no phone where prospective employers can reach him?

Dumping impoverished people on the streets is not a good way to reduce crime.

We can make no sense at all of ORC 5120.56 unless we look deeper in the Code. ORC 5145.16 authorizes the Ohio Department of Corrections to use convict labor in the free market place. The convict labor may be used in State owned enterprises competing against the private sector, in privately owned factories built on public lands, or in privately owned factories on private property.

The convict workers are prohibited from being union members and are exempted from medical, retirement, and benefit packages. Private employers of convicts must still meet safety and health standards in the work place, but not union contract standards. Income and Social Security tax status are in question.

Prison and private employers are not required to pay union scale, prevailing wage, or to date, even comply with minimum wage laws. In short, the law creates a selectively available labor pool at third world wage levels in Ohio. Ohio's prison population is approaching the 50,000 mark. Even discounting high security risks, infirm, and terminally lazy convicts, 30,000 workers will be available at below market wage scales. Who stands to benefit? Certainly large companies with plants located within commuting distance of prison facilities, who wish to break unions, or hold unions at bay, benefit. Small firms located near prison complexes who are able to obtain contracts with the prison will benefit.

Who will be harmed? Large firms who have no plants near prison complexes will be denied access to the cheap labor. Small firms not fortuitously located will be denied access to the cheap labor pool. Since there are no provisions setting the parameters in selecting contractors, perhaps who gains and benefits will be based on other less quantifiable criteria. Union workers, above average pay scale workers, all law abiding workers suffer as 30,000 below market wage workers are dumped into the labor pool. In the long run every worker suffers as the overall wage level declines in response to available cheap labor.

Perhaps the greatest impact may be upon the communities in which prisons are located. Opening a 2000 bed prison may create about 500 staff jobs in a community, but under ORC 5145.16, the convict labor force can then displace nearly 2000 other members of the community. The convict's wages, under ORC 5120.56, will go to the Department of Correction and not be spent in the community. Each community business loses patrons; no real estate or sale taxes are paid. For the city there may be little difference between having a plant relocate in Mexico and having a prison supply the plant's labor in Ohio.

In large part, ORC 5120.56 is an absurdity obscuring reality. Convicts already work, and already lose almost all the fruits of their labors. Convicts perform almost all clerical, service, and maintenance functions within the system. Convicts work in State industries supplying goods and services to government agencies and increasingly to the free market. Convicts work between 30 and 100 hours a week. Only a handful earn more than $24 a month and none more than $500 a month. If an individual supplies goods and services to a landlord and pays no rent, the IRS will wish to tax both of them for fair market value. The Department of Correction already receives the difference between what convicts are paid and the fair market value of their labor.

Economic exploitation of prisoners always raises serious moral, political, and economic questions. Hardly can we contemplate the NAZI exploitation. Soviet Russia's economic exploitation of prisoners defined, "The Evil Empire." Much of the American electorate and much of the world, agree Red China's economic exploitation of prisoners excludes it from the rolls of civilized nations. Where on the road between foolishness and atrocity does the Ohio practice and plan fall? Perhaps more importantly, in what direction on the path are we traveling?

Until recently, the prisons were a closed system with there own rules of labor and reward. Some work was required. Effort above the minimum was rewarded with silence. Effort below the minimum led to the prison disciplinary process. Effort beyond the expected was rewarded with private perks and most importantly, went far towards earning release on parole.

Over the past decade, exploitation has increased, tentatively entered the private sector, and rewards sharply reduced. The combination of ORC 5145.16 and ORC 5120.56 take a quantum leap in the direction of using prison labor as an economic and political weapon. It takes a quantum leap in the direction of exploitation. Our grandchildren will not be proud of our actions.

Though Senate Bill 111 passed both Houses of the Legislature and undoubtedly will be signed by the Governor, it must be implemented through the rule and regulation making process. That process requires a fiscal analysis, public hearings, and final approval through legislative committee. All those who may be economically effected by a rule have the right to offer evidence and testimony. Every Ohio citizen may be economically effected by ORC 5145.16 and ORC 5120.16.

The economic and moral consequences are upon those who remain silent.

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