I’m aimlessly scrolling my Twitter feed when it flashes with a concerning post from American Apparel & Footwear Association’s (AAFA) president and CEO, Steve Lamar. Keen to know more, I jump on a call with him where he opens with: “US prison inmates are engaged in a work programme where they manufacture apparel for sale to the US Federal Government.”

“Forgive me, but it’s giving Xinjiang vibes,” I respond bluntly, itching for him to reveal more detail while trying to drown out the sound of the alarm bells ringing in my ear. To my mind, no country in the world has been as vocal about knuckling down on forced labour – particularly where China is concerned – than the US.

Prison labour programme: the ethical concerns

Though news to me, Lamar explains the programme has actually been in existence for over 90 years.

“It’s kind of just stuck on autopilot,” he says, commenting that like me, many people are just unaware the programme exists or what it entails.

His biggest gripe is that it takes business away from hardworking US clothing manufacturers and he’s keen to raise awareness of the matter in the hope steps are taken to level the playing field.

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According to the US Department of Justice (DoJ), the programme is part of the Bureau of Prisons’ (BoP) strategy to expand opportunities for occupational training with a focus on ensuring that inmates develop the job skills they need to find work after release from custody. The BoP engages Federal Prison Industries or UNICOR to execute this objective.

“Research shows that inmates who worked in prison industries were 24% less likely to recidivate and 14% more likely to be gainfully employed after release from custody than other inmates,” the DoJ website reads. “In 2016, the Bureau hired Gary Simpson, a former manufacturing and operations executive of a Fortune 100 company, to restore FPI’s viability and increase opportunities for inmates.”

FPI produces over 80 different products and services for sale to the Federal Government in its six major product/service groups. FPI’s primary customers are Federal Government agencies, including the Department of Defense, Department of Homeland Security, Department of Justice, General Services Administration, Veterans Affairs and the United States Postal Service. Under The First Step Act, which was signed into law in December 2018, FPI can sell its products to public entities for use in penal or correctional institutions; public entities for use in disaster relief or emergency response; and the Government of the District of Columbia.

FPI’s goals “are very notable on paper” asserts Lamar, pointing to the idea of it being a rehabilitation programme for inmates to prevent recidivism and to train them for life back outside prison once their sentence has been served and to manage stability in the prison through keeping inmates occupied.

“We support all these goals,” Lamar says.

“The question is whether they are accomplishing them. When you dig a little deeper you realise the inmates are obligated – forced to work. Every able-bodied inmate is required to work. They are not paid a minimum wage and there are a number of other issues that are indicators of forced labour, as per the International Labour Organisation.”

It’s clear he – on behalf of the US footwear and apparel industry – is frustrated, that while on the one hand, the US is campaigning for a crackdown on forced labour, on the other, the support of FPI’s programme by the US Government contradicts this.

“UNICOR itself has a booklet titled Factories with Fences. In an era when we are talking about what efforts can be taken to remove forced labour from supply chains, this kind of stands out there as a real sore thumb.

“Our first concern is the US Government is backing a kind of a forced labour situation that really needs to be addressed.”

According to the International Labour Organisation, there are 11 indicators of forced labour. “FPI, objectively, meets four of these indicators,” Lamar asserts. “Subjectively, many more. But certainly, debt bondage, forced to work, and restricted movement.

“The presence of a single one of these things would send out red flags in a private sector setting and would force you to stop and decide what steps you need to take to mitigate this. The presence of any one of these things might trigger a Withhold Release Order (WRO).”

Factories with Fences: “For the greater good”

In its Factories with Fences mission statement, FPI states its goal is “to protect society and reduce crime by providing inmates with job training and practical work skills for reentry success”.

Its Prison Industries programme is designed to provide “meaningful work in prison factories, producing goods for sale to the federal government.”

Speaking exclusively to Just Style, a spokesperson for FPI assured no inmate is “ever forced to work for FPI” and that its work programme is 100% voluntary.

“Inmates selected to work for FPI may resign at any time and for any reason, without any consequence,” the spokesperson adds.

“FPI facilities comply with Occupational. Safety and Health Administration (OSHA) standards and are inspected by the Safety Department of the Federal Bureau of Prisons. All inmate workers are able to informally and formally raise any safety and worker wellbeing issues to the facility management and institution leadership.

“FPI inmate workers are participants in a prison work programme, not employees in the private or government sectors where unions operate. If they do not like the FPI programming, they can freely do other programming instead.”

Though FPI is not a member of the Forced Labour Association (FLA), Just Style reached out to the body for its take on the matter.

FLA chief of staff, Shelly Han, tells us while it has not examined FPI’s business offerings specifically, it has evaluated other prison labour models in the US and worldwide.

“Given its non-voluntary nature as well as its substandard (or non-existent) wages, FLA does not condone prison labour under any circumstances. Prison labour that is managed by for-profit entities is particularly problematic.

“FLA standards prohibit the use of prison labour in member supply chains at all times and in all countries, including the United States.”

But beyond concerns over worker rights is the issue of “unfair competition”.

Competition concerns – “It’s ‘Buy America’ on steroids”

FPI points out that in order to create work programmes “necessary for prison safety and inmate rehabilitation while avoiding the alienation of labour and business”, it would make products for sale exclusively to the Federal Government and would not compete against private sector companies in the commercial market. But Lamar believes these are still opportunities that could be afforded to hard-working private entities.

“Forced labour, in addition to being a terrible situation for workers involved, also creates an unfair competitive dynamic with entities not engaged in forced labour, and that is certainly present here.”

Under the Berry Amendment, a staple of government procurement law, US military looking to buy uniforms, shoes and equipment is expected to procure these from US manufacturers with US inputs.

“Some call it ‘Buy America on steroids’. It is a very restrictive Buy America law. However, it’s worked very well in preserving a warm domestic base (warm meaning ready to go to war).

“At one end it means US manufacturers don’t have to compete with foreign manufacturers. Instead, they are competing with FPI whose cost structure is either subsidised or much lower than a private company’s cost structure. And FPI also sits on the top of a government contracting preference list.”

This means if a government procurement officer is looking to buy something, they need to check first that FPI doesn’t sell it. If FPI does sell it, it gets first preference. It’s not even put out for a bid. And anytime it is put out for bid, FPI gets to compete for it.

“The way the law has been interpreted means any time there is any type of competition, FPI gets to compete. Sometimes when a contract goes out to compete, the Federal Government will set it aside for groups they’d like to drive business for; small businesses, women-owned businesses. And FPI can compete on any of those. Despite being a massive government programme with 65 factories, 20,000 units and with sales of over $400m a year, they get to compete as a small business or a women-owned business. It is beyond comprehension why the Federal Government, in addition to the mandatory source, is giving this additional leg-up, again recognising that it is a forced labour situation.

“So this is frustrating on a number of levels as it means US manufacturers are not getting business when we’re looking at ways to drive business here, to support their ability to thrive and retain workers and invest in companies. They’re not able to do that. At a time when we are looking at doing everything as a country to make sure forced labour – no matter what it looks like and where it shows up – isn’t happening, the US government has sort of recused itself from that exercise as it continues to support those actions.”

Han agrees it is “very disappointing when any purchaser chooses to knowingly select goods produced under forced labour conditions.

“Our standards are very clear and very public. Our code of conduct states: “There shall be no use of forced labour, including prison labour, indentured labour, bonded labour or other forms of forced labour”.”

The AAFA has attempted dialogue with FPI over the years and has encouraged and asked the body to refrain from expanding across industry sectors. But Lamar says: “They sort of define their way out of the statutory restrictions to show they don’t represent a threat to our membership or the industry. So those discussions haven’t been very productive.”

The next steps

“We’re spending more of our time communicating with folks around Washington and Congress who are interested in preserving a strong manufacturing base, stopping forced labour as this is where we feel we are going to have more success,” Lamar explains.

“The first step is raising awareness on the issue given many conversations are revealing a lack of awareness around it. We are then letting people form their own opinions about how it needs to be addressed.

“This was a programme that was created in the 1930s and it’s kind of on autopilot. The Federal Government is massive. There are parts of the government that don’t know what other parts are doing. There are different levels of this where individual government offices and policymakers are looking at this and going: ‘OK, we probably need to change this or that needs to be addressed’.

“We’ve got a couple of initiatives with Congress to see if they can modify the rule that allows them (FPI) to compete as a small business. There is an investment conference that the US Government holds each year. But this year it felt like they really crossed the line. This is the conference to promote other people to invest and do business in the US. The attendees are individuals from all over the world and unbelievably the US Commerce Department gives time to FPI to talk about manufacturing products in prisons and that was allowed to go forward as representing American manufacturing at its best.

“I can’t for a second imagine a universe where anyone in the US would want to describe making products in a prison factory as representing US manufacturing at its best. It’s offensive. It’s appalling. The hope is to stop the promotion and the support.

“I’m hoping this leads to eliminating some of the short-term fixes that lead to the immediate competitive dynamics and leads to a longer-term dialogue about “is this the best way to retrain and rehabilitate inmates? Should we be relying on these forced labour techniques?” I would argue no. I would argue absolutely not. But I think there are those invested in the programme that would believe otherwise. But we should really decide if this is a programme that really represents the best the US has to offer.”

The US Department of Commerce did not return requests for comment when approached by Just Style.

This article first appeared in Just Style.