Unintended consequences: Amendment 1 could allow prisoners to unionize

There’s been a 50-year national push to unionize inmate workers in prisons – including a 2020 article published by Northwestern Pritzker School of Law. The rights granted in Amendment 1 to all “employees” could result in Illinois prison unions.

Illinois voters will determine the fate of a proposed amendment to the state constitution on Nov. 8. Dubbed a “workers’ rights amendment,” Amendment 1 would actually make possible secret government contracts and hidden tax hikes.

But a poor business climate and increased taxes aren’t the only consequences hidden in the language of Amendment 1.

The amendment could also pave the way for inmates in Illinois correctional facilities to unionize — something that activists have been trying to achieve for the last five decades. As Erik M. Fink wrote in one scholarly article, “The notion of unions for incarcerated workers may seem far-fetched. Yet the idea has a long history.”

And he’s right. Connecting the dots between Amendment 1 and potential prisoner unionization isn’t far-fetched at all:

1. Amendment 1 applies to all “employees.” There is no restriction, and lawmakers would be prohibited from refining the definition of “employee.”
2. Illinois law already requires the Illinois Department of Corrections to “employ” inmates.
3. There is a nationwide push to unionize inmate workers, including in Illinois. Not only did a 2020 article published by Chicago-based Northwestern Pritzker School of Lawadvocate for unionization, but there is already a union affiliate in Chicago.
4. Advocates’ strategy targets states with permissive labor laws – such as Amendment 1.

Amendment 1 could create the perfect legal environment for advocates to implement their strategy. Their success would hinge on the definition of “employee,” which would likely require a determination by Illinois courts.

• Amendment 1 applies to all “employees”

The language in Amendment 1 would grant a “fundamental right” to unionize to all “employees,” and it places no restriction or limitation on who qualifies as an “employee.”

What’s more, the amendment would also prohibit lawmakers from ever refining or clarifying who is an “employee” for purposes of the amendment. Its language forbids any law that could “interfere[] with” or “diminish[]” the right of “employees” to bargain, which would potentially include any law excluding certain “employees” – such as inmate workers – from the reach of the amendment.

Because the drafting of Amendment 1 is so broad, employees historically not allowed to unionize could now have a “fundamental right” to do so, and  Illinois residents would have no power to combat the consequences because their representatives’ hands would be tied.

2) The state is required to “employ” prisoners in its facilities

Illinois law requires the Illinois Department of Corrections to “employ at useful work committed persons confined in institutions and facilities of the Department,” in so far as possible.

That is not a suggestion – it is a requirement.

The “types of employment” include, but are not limited to, the following:

• production of vehicle registration plates
• production of food stuffs and finished goods and any articles, materials, or supplies for resale to state agencies and authorized purchasers
• public works, work on buildings and property, the conservation of natural resources of the state, anti-pollution or environmental control projects, or for other public purposes, for the maintenance of the Department’s buildings and properties, and for the production of food or other necessities for its programs

This employment language is echoed in other provisions regulating the Department of Corrections. For example, one section requires the department to “employ committed persons to grow or produce as much food as is practicable for consumption within its institutions.” Another requires the department to create and operate “a recycling and refuse sorting program in which committed persons shall be employed.”

Under the plain wording of Amendment 1, these prisoners are “employed” and entitled to exercise the“fundamental right” to organize.

While there is one Illinois provision stating that a committed person is not considered an employee for purposes such as benefits and compensation, advocates would argue that law violates the language of the amendment that prohibits any law infringing on the right to organize. At the very least, such an exclusion from the general category of “employee” will require a court decision.

Further, that provision is at least partially contradicted by another provision that allows compensation to inmates participating in work programs. And information obtained via a Freedom of Information Act request shows workers are in fact currently paid.

An administrative directive outlines daily and monthly stipend ranges depending on the worker’s work assignment, such as “skilled worker” or “clerical worker.” It also addresses issues such as raises and number of work hours – issues typically addressed through collective bargaining.

In short, the Department of Corrections employs and pays inmate workers – who therefore could likely unionize and bargain collectively under the plain language of Amendment 1.

3) The nationwide push to unionize prisoners has history in Illinois – including an already-established prisoner union affiliate in Chicago

The unionization of inmates who work in prisons dates back to the 1970s. Between 1971 and 1975, more than 11,000 prisoners formed unions across 13 states nationwide.

While the U.S. Supreme Court determined in 1977 that prisoners have no federal constitutional right to organize, the court did not prohibit organizing. It also did not consider what would happen if a state created its own constitutional right, such as that which would be created under Amendment 1.

And recently-published scholarly articles prove the push for inmate unionization isn’t slowing down.

Some include an article published by Northwestern Pritzker School of Law in 2020 – less than a year before the Illinois General Assembly voted to put Amendment 1 on the ballot. Cornell Law Review and the Idaho Law Review also published pieces supporting the unionization of inmate workers in 2017 and 2019, respectively.

And there’s already a union ready to step in and represent prisoners: The Incarcerated Workers Organizing Committee (IWOC). Its website states that it has hundreds of members in more than 15 prisons and includes Chicago as a location of one of its affiliates.

IWOC and other advocates have coordinated or supported inmate worker strikes in recent years. A 2018 strikereportedly involved 17 states and was endorsed by more than 150 allied groups. A 2016 strike included prisoners in 12 states, and IWOC estimated that as many as 50,000 inmates took part. And a 2010 strike started with thousands of prisoners in Georgia, which sparked others to follow suit – including those in Illinois.

Strikers’ demands went beyond typical labor issues to include parole board policy and for some, even the abolishment of the prison system altogether.

4) Advocates’ strategy targets states with permissive collective bargaining laws – such as Amendment 1

The 2020 Northwestern Pritzker School of Law article lays out its suggested strategy for advocates of unionized prisoners: “in order to build a successful movement and win protections for a larger number of incarcerated workers, those workers must seek recognition as public employees at the state level in states with robust collective bargaining statutes.”

It suggests advocates “focus their efforts” in states with “broad definitions that could conceivably include prisoners” within their labor laws.

Amendment 1 would create this ideal legal landscape in Illinois. Its broad language does not limit who is an “employee.” It effectively prohibits lawmakers from defining employee to exclude certain categories of workers, including inmates who are employed and receive compensation in the correctional system.

In fact, the amendment goes further than the laws advocates suggest using. It isn’t just an expansive labor law, it would create a stand-alone constitutional right for advocates to use in unionizing inmate workers.

If advocates are successful, the problematic provisions in Amendment 1 would apply to inmate workers. They could unionize, make virtually limitless demands, and go on strike to get those demands met.

The creation of inmate worker unions would be just one of many unforeseen consequences of Amendment 1.