Question 4 could mean changes for Nevada’s inmate laborers

Stacy Tai was among a team of 10 Nevada prisoners who helped clean up the mess left behind from a 2021 wildfire in Laughlin.

The ground was still smoldering, burning people’s feet, according to a lawsuit the American Civil Liberties Union of Nevada filed against the state.

The team’s supervisors sent inmates, trained behind bars to fight fires, back to work after they complained and mocked them, according to the lawsuit.

Tai’s boot melted off and was repaired with a roll of duct tape, according to the lawsuit.

The inmate’s pay: an average of $1 an hour.

“They’re complaining about work conditions that any other person in their right mind would tell their supervisor to shove it and walk away from,” said Christopher Peterson, legal director for Nevada ACLU. “But when you’re incarcerated, you can’t do that.”

“Our constitution allows you to be a slave,” at least if you are serving time, Peterson noted.

While the Nevada Constitution states that neither slavery nor involuntary servitude shall ever be tolerated, it makes an exception for “the punishment of crimes.”

On Election Day, Nevadans will decide whether to strip that exception from the state constitution with Ballot Question 4.

If passed, however, what happens next and how workers like Tai would be affected is still an open question.

Seven other states have removed similar language since 2018, largely doing so through ballot measures like the one to be decided in Nevada.

California will also ask voters whether to remove its penal exception clause Nov. 5.

Nevada Assemblyman Howard Watts III, D-Las Vegas, was a lead sponsor of the bill enabling the ballot question, which had to pass the Legislature twice before being put to voters.

“Fundamentally, what this is about is looking back ... at some of the discriminatory practices that were put in place following the abolition of slavery in terms of convict leasing, chain gangs,” Watts said. “It’s sending a clear message that we’re never going back to that ever again.”

In both sessions, the Legislature passed the resolution without a single “nay” vote. Most of the discussion in committee related to the language being a remnant of the past and less about its potential legal implications.

But in other states, the effect of removing the penal exception clause has been a mixed bag.

In Colorado, local community organizer Kym Ray told National Public Radio that she “had not seen the change happen inside of our prisons” five years after the state had removed the language.

States that have recently banned slavery without exception are now in a “post-abolition” phase, said Dennis Febo, the lead organizer of the Abolish Slavery National Network.

Febo, whose organization has helped spearhead the movement, said lawsuits challenging prison work programs are underway in Alabama and Colorado, where an initial challenge failed.

“We always understood it was going to end up in the courtroom because when you look at any of the cases, it stops right at the 13th Amendment” to the U.S. Constitution, Febo said. The 13th Amendment, which was ratified eight months after the Civil War ended in 1865, abolished slavery “except as a punishment for crime whereof the party shall have been convicted.”

Ryanne Bamieh, who documented the legal consequences of removing the penal exception clause in Harvard’s Civil Liberties Law Review, said the aftermath of different ballot measures haven’t played out enough to say whether they will lead to definitive progress.

“It remains to be seen,” Bamieh said. “It’s quite likely it will have no effect, but there’s the possibility that it could really improve things for people who are incarcerated.”

Jodi Hocking, founder and executive director of Nevada prison advocacy group Return Strong, told the 2023 Legislative Committee that Black, brown and poor people are being taken advantage of on “a daily basis.” That includes making undocumented prisoners work for free, she alleged.

The ballot question might change that.

“It’s getting the language out of the constitution, but I don’t think that we’re even having discussions that will trickle down to what state law looks like yet, but it definitely needs to happen,” Hocking told the Sun.

Watts said concerns that a constitutional change would result in the end of the state’s prison voluntary work programs were “overblown” but added that further interpretation was “up for the courts to decide.”

“Fundamentally, I think (the ballot question) is not going to have a dramatic impact on what our prison and correctional system looks like today,” he said.

Peterson said there was no planned litigation from the state ACLU if the ballot measure passes, but that the organization was in the same position before a version of the Equal Rights Amendment was approved in a 2022 ballot question. Since then, the ACLU has litigated a case related to the amendment.

The courts may have to figure out, if passed, what Nevada’s ballot measure means for prison workers’ wages.

Prison Industries, also known as Silver State Industries, is a self-supported branch of the Department of Corrections which employs over 400 offenders, manufacturing goods ranging from mattresses to car parts. The program operates throughout the state, including Northern Nevada Correctional Center, Nevada State Prison and High Desert State Prison.

The average hourly wage for fiscal year 2023 was $2.96, according to data submitted to the Nevada Assembly’s Judiciary Committee, with some offenders’ pay going as low as $0.35 an hour.

Then-Assemblyman Andy Matthews asked Watts during a 2021 committee meeting about the legal distinction between the potentially removed language and typical incarceration. Watts clarified that prison industry work was separate from involuntary servitude.

“I’m just envisioning some clever lawyer trying to misconstrue what is obviously the clear and obviously very, very good intent of this,” Matthews said at the time.

In 2023, state Sen. Dina Neal, D-North Las Vegas, introduced legislation requiring the Nevada Department of Corrections to pay people on prison fire crews the state minimum wage of $12 an hour.

A year earlier, the state Supreme Court deemed that Nevada prison wages, $3 a day for some, were legal.

There have been some changes to Silver State Industries, where wages increased 56% from 2019 to 2023.

In a Judiciary Committee report, the organization indicated about 27% of its workers were being paid at least the federal minimum wage — $7.25 an hour — at the end of January.

Peterson said the proposed change to the state constitution would give his organization a stronger position to argue in court against the meager wages prisoners earn.

If the Nevada Department of Corrections “changes its practices and starts treating people appropriately, I don’t need to litigate,” Peterson said. “If they continued to treat people like slaves … that’s why we exist, right?”

Reporter Ayden Runnels contributed to this report.

[email protected] / 702-990-8923 / @Kyle_Chouinard