From August 21, 2018, to September 9, 2018, incarcerated individuals across America orchestrated a daring and seemingly improbable coordinated protest: they went on strike. From California to North Carolina and in roughly fifteen other states,1 thousands of prisoners engaged in peaceful work stoppages, hunger strikes, sit-ins, and commissary boycotts.2 This nationwide strike emerged in part as a response to a deadly riot, kindled by poor living conditions and guard understaffing, at the Lee Correctional Institution in South Carolina in April 2018.3 But more broadly, the prison strikers sought to draw public attention to longstanding grievances over inhumane treatment within prisons across the country and to call for significant criminal justice reforms. The strikers, through the inmate organization Jailhouse Lawyers Speak, issued a list of ten national demands, calling for, among other things, improved prison conditions, better access to rehabilitation programs, voting rights for all current and former prisoners, and the “immediate end to the racial overcharging, over-sentencing, and parole denials of Black and brown humans.”4 Most critically, the strikers passionately called for the “immediate end to prison slavery”5 — the label that activists use to describe the exploitative labor practices within prisons of putting prisoners to work, sometimes compulsorily, for just “cents an hour or even for free.”6
Although none of the strikers’ ten demands have yet been met, the 2018 nationwide prison strike was still a remarkable event in its scope and coordination, as well as its ability to generate public support and attention. An estimated 150 different organizations endorsed the strike; citizens held numerous demonstrations outside of prisons in solidarity; and a range of national media publications provided detailed coverage of the protest’s motivations, objectives, tactics, and status as potentially the “largest prison strike in U.S. history.”7
Despite the 2018 prison strike’s apparent gravity, it is difficult to fully contextualize its significance because surprisingly little attention has been paid to prison strikes previously. For instance, just two years prior, in 2016, a similar nationwide prison strike was described as “[t]he largest prison strike . . . you [probably] haven’t heard about.”8 In light of this reality, this Note peers behind prison walls to improve our understanding of prison strikes — the end goal being to open the door to a broader discussion of why and how these strikes should receive legal protection. Part I briefly documents America’s history of prison strikes, showing that the 2018 nationwide strike is the latest in a long, important tradition of prisoners using the only real means available to them — collective actions against prison administrators — to protest labor conditions and other deeply held grievances. Part II then evaluates the legal framework governing prison strikes, demonstrating that such strikes likely do not receive sufficient protections under either the Constitution or federal and state statutes and therefore can be shut down by prison administrators without fear of judicial oversight. Part III, informed by the rich history of prison strikes, argues that their potential and demonstrated value demands, at the very least, consideration of the merits of protecting incarcerated individuals’ right to strike, and it contends that the First Amendment framework offers one potential avenue to allow prisoners to peacefully surface pressing problems in our carceral system and to collectively express their humanity and dignity.
I. Prison Strike Background and History
The term “prison strike” encompasses a range of nonviolent collective actions by prisoners — namely work stoppages, sit-ins, spending boycotts, hunger strikes, and other forms of protest — that challenge the rule or order of prison administration and generally disrupt “business as usual” within the prison.9 Prison strikes differ from other forms of collective action in prisons, including prison riots and rebellions, in that they are peaceful forms of resistance: they do not involve the threat or the use of force against persons or property.10 And prison strikes differ from other forms of prison disturbances, like individual inmate protests, that are not collective in nature and therefore do not disrupt normal prison activity or obstruct prison officials’ control.11
Generally speaking, prison strikes (and prisoner collective action more broadly) have not received rigorous scholarly or media analysis until very recently. Social scientists, legal scholars, and the press have largely failed to provide a systematic accounting of the history and place of prisoner protest in the American penal system, particularly prior to the early to mid-twentieth century.12 Against this backdrop of scarce attention, this Part briefly considers the history of prison strikes, both to illuminate an important but overlooked aspect of prison life and to inform the legal analysis that follows. In particular, this Part provides an abbreviated overview of strikes across four key periods of prison development in the United States: (1) the inception of the American prison during the early American republic, (2) the creation of modern legal punishment and penitentiaries between the antebellum period and Reconstruction, (3) the explosion of prison systems and prison labor between Reconstruction and World War II, and finally (4) the prisoners’ rights and reform movements emerging between the end of World War II and our present-day mass incarceration system.
This overview suggests that as the carceral state has expanded and evolved, so too have prison strikes — thus placing actions like the latest 2018 strike in a long tradition of prisoners organizing to express deeply held grievances. Further, examining the history of prison strikes reveals that strikes are often the only way for the incarcerated to act on those grievances — and that while strikes have rarely brought about immediate changes, they have helped initiate longer-term prison reforms and have periodically been successful in drawing attention to the otherwise unnoticed plight of those behind bars.
Prior to the Revolutionary War, no prison institutions as we know them today existed; only small colonial jails existed for housing poor defendants for pretrial and presentencing purposes.13 In the aftermath of the Revolution, however, the nascent republic experienced a radical transformation in penal practices. Driven by great dissatisfaction with the British system’s liberal use “of the death penalty and other sanguinary punishments” seen as “inherently despotic,”14 the new American states began to reform their criminal codes to make incarceration (largely with hard labor sentences) the primary form of criminal punishment.15 Laborers and journeymen, from whose ranks early prison populations tended to be drawn, viewed this new system as a pernicious form of indentured servitude.16 These laborers therefore protested America’s newly constructed prisons not only outside the penitentiary walls,17 but also within them. Prisoners frequently engaged in various violent acts of insurrection, as well as subtler, nonviolent protest actions between the 1790s and 1810s.18 For instance, prisoners in Philadelphia’s Walnut Street Prison, America’s first prison, routinely engaged in “Blue Monday[s]”: laying down their tools and stopping work.19 Such actions, initiated to “eas[e] their working conditions, acquir[e] various perquisites, and otherwise soften[] their circumstances,”20 bore remarkable resemblance to the prison strikes of today.
Beginning in the 1820s, America’s nascent prison system underwent a second transformation. A “crisis of legitimacy” surrounding early penitentiaries like Walnut Street — prompted in part by a growing perception that these institutions enabled and exacerbated social disorder (like Blue Monday strikes) — led states to reckon, for the first time, with prescribing what precisely should go on within prison walls.21 The system that ultimately emerged, the “Auburn system,” involved isolated, fortresslike prison structures where the state (1) sold inmates’ labor power to private manufacturers by day, (2) locked inmates in solitary stone cell houses by night, and (3) enforced strict forms of discipline.22
Although the Auburn system’s physical structure and strict discipline regime certainly hindered inmates’ ability to engage in collective action — putting an end to mass nonviolent resistance like Blue Monday strikes23 — inmates nonetheless managed to work together and mount subtler forms of protest. They found ways to circumvent mandates of silence and to develop clandestine methods of communication;24 they destroyed workshop tools to sabotage prison labor; they staged demonstrations over prison conditions;25 and, at times, they also went on strike.26 In short, inmates in antebellum America, like those in the early republic era, responded to shifts in legal punishment with shifts in their means of collective action.
In the aftermath of the Civil War and the formal abolition of chattel slavery, the United States underwent yet another important prison transformation: an explosion of the exploitation of prison labor. Indeed, the penal contract system that had first emerged during the antebellum years became a “large-scale, highly rationalized,” and profitable industry across the country.27 Accompanying this rapid expansion of prison labor systems was the development of new regimes of prison discipline. Prison keepers and contractors routinely imposed strict work penalties (such as longer workdays and sentence extensions), corporal punishments (such as liberal use of a lash or paddle), and deprivation punishments (such as solitary confinement in a dark cell) even for minor transgressions28 — all “with the undisguised purpose of . . . driving [inmates’ bodies] to render up immediate, unceasing, bountiful labor” for contractors.29
In the face of such exploitative labor and harsh discipline, and with little recourse from prison monitoring boards30 or state and federal judges,31 prisoners instead turned to collective action to resist contractors and prison administrators and to air their grievances. Prisoners mounted more than a dozen major riots and full-blown insurrections at penitentiaries between 1879 and 1892.32 And in many instances, these riots and insurrections morphed into well-disciplined and peaceful labor strikes engulfing entire prisons.33 Strikes occurred at a number of large industrial Northern prisons during the period: at Sing Sing in New York in 1877 and in 1883, at the Concord state prison in Massachusetts in 1882, at Kings County penitentiary in New York in 1885, and at the Trenton state prison in 1890.34 And the same was true to varying degrees in the South and other regions, as shown by strikes at the Missouri State Prison in 1875,35 at San Quentin in 1891,36 and across “the mines, swamps, and plantations of Florida, Georgia, Alabama, Mississippi, and South Carolina,” where black men and women “struck, sometimes by the hundreds.”37
Although all of these prison strikes were quickly (and often violently) quelled by prison authorities, the strikes were significant in that they symbolically empowered inmates, who could no longer be considered “powerless, broken men who could do nothing but toil obediently for their masters.”38 The strikes, alongside organized labor protests, also generated considerable media attention and public outcry about prison conditions that ultimately catalyzed the demise of contract prison labor in the late nineteenth and early twentieth centuries,39 as well as the rise of penal reform efforts during these years.40 Progressive Era legislators and prison administrators began to adopt modern prison practices like parole and to reconceptualize prison labor — now run directly by the state — as part of broader efforts to rehabilitate inmates.41
Despite these reforms, inmates still faced oppressive conditions in prisons during the early to mid-twentieth century. Prisoners across the South toiled in fields as part of repressive state-operated chain gangs.42 Prisoners across the North still endured long workdays and abuse while working on factory floors for the state.43 And while Progressive Era reformers initially experienced success in their efforts to humanize the incarcerated and dignify incarceration, these efforts quickly gave way to a penal management philosophy oriented around establishing social order and strict discipline within prisons.44 As a result, just as they had done in the aftermath of Reconstruction, prisoners during this era — armed with new Progressive ideologies and supported externally by ever-growing labor movements — continued to strike sporadically. Most prominent was the Sing Sing prison strike in 1913, which precipitated a political crisis within New York;45 strikes like this, on a smaller scale, also popped up in prisons in states like California,46 Illinois,47 Kansas,48 Maryland,49 Massachusetts,50 Michigan,51 Minnesota,52 Ohio,53 Oklahoma,54 Pennsylvania,55 Tennessee,56 and Wisconsin,57 up until World War II.
Between the end of World War II and the present day, American prisons have experienced three distinct waves of prison strikes, each of which has represented increasingly large and more organized efforts by prisoners to collectively protest. First, in the decade immediately following World War II, prisons across the United States experienced a series of significant work stoppages and sit-down protests. As Professor Heather Ann Thompson documents in her history of labor movements in prisons, thousands of prisoners across much of the country — in Northern states like Connecticut and New York, Southern states like Georgia and Louisiana, and Midwestern states like Ohio and Wisconsin — went on strike against prison administrators,58 largely to protest what some have characterized as “long hours, trifling pay, and grueling work environments.”59 Labor figured prominently in these strikes, because in the years immediately preceding and following the Second World War, America’s prison industry experienced a renaissance, driven by federal legislation “regular[izing] the public sector’s use of inmate labor and put[ting] state and federal prisons in the business of manufacturing clothing, furniture, and other items for use by state and federal government agencies.”60
The prison strikes of the postwar years, while only minimally successful in generating immediate concrete changes for prisoners, did, for the first time, elevate strikes to a truly national scale — generating national headlines (alongside the broader labor unrest of the postwar years61).62 More crucially, these strikes laid the foundation for a second wave of modern prison protests in the 1960s and 1970s. Like their predecessors, many of these strikes were labor protests. For example, nearly a thousand inmates went on strike at a Virginia state prison in 1968 for higher wages.63 But the prison strikes of this era also had a broader vision. Inmates protested against a host of inequities and dehumanizing aspects of their imprisonment.64 Over a thousand inmates in a New York prison engaged in a sit-down strike in 1961 to protest against the state’s unfair parole regulations;65 more than 450 inmates struck in the metal shop of another New York prison, the Attica State Correctional Facility, because they were forced to live under conditions “tantamount to slavery,” unable to afford even basic necessities like soap and toilet paper;66 and prisoners in the California prison system went on strike repeatedly, most notably at the Folsom State Prison in 1971.67
On the one hand, the prison strikes of the 1960s and 1970s crumbled under “extraordinary repression,”68 became somewhat tarnished in the public eye by violent incidents like the famed Attica riot of 1971,69 and were thwarted by nationwide forces aggressively expanding the prison-industrial complex, initiating a wave of mass incarceration and curbing prisoners’ legal protections.70 But these increasingly sophisticated and large strikes did achieve some immediate success. They led to slight increases in pay and triggered noteworthy reform efforts within prisons, including the establishment of inmate-run grievance committees and advisory boards.71 And more importantly, these strikes were critical in raising public awareness of prison conditions; occurring alongside the civil rights movement and broader prison organizing and reform efforts both inside and outside of prisons, demonstrations like the Folsom strike helped usher in an energetic prisoners’ rights movement, comprised of inmate activists, lawyers, academics, journalists, and various other groups, that continues to this day.72
The past decade has witnessed a resurgence of this prisoners’ rights movement and, correspondingly, a third wave of strikes within prison walls. Building off the legacy of the strikes in the 1960s and 1970s, these modern strikes have become increasingly organized — with strikers working with numerous advocacy groups outside of prisons to coordinate protests across prisons. In 2011, for example, 400 prisoners at California’s supermax prison at Pelican Bay began a hunger strike — demanding changes to prison conditions and policies, most notably concerning solitary confinement — that eventually grew to 7000 inmates across the state; this strike, and a successor strike in 2013, successfully caused prison officials to reconsider why and for how long prisoners are kept in solitary.73 In 2014, inmates across three Alabama prisons, organized by a prison group called the Free Alabama Movement, participated in work stoppages for over a week to protest deplorable conditions behind bars and to call for an end to mass incarceration.74 The Free Alabama Movement expanded its efforts outside of Alabama in 2016 to organize the largest prisoner collective action protest in U.S. history: a nationwide prison strike involving more than 24,000 inmates.75 Although they did not issue a “single, unified list of demands,” the 2016 prison strikers generally protested for “fair pay for their work, humane living conditions, and better access to education and rehabilitation programs.”76
While largely unsuccessful in effectuating major changes to the American prison system, the 2016 prison strike and the prison strikes of the past decade have raised the salience of prisoner collective action efforts on the national level. For the first time, prisoners are collectively making their voices loudly heard across the country — injecting their viewpoints and demands into our national debates on mass incarceration, forced labor, and other injustices of our carceral state.
The brief and likely incomplete77 background on prison strikes presented above is critical in two respects. First, it sheds light on an unexplored, important area of prison history — one that requires deeper scholarly attention. Second, and more relevant to this Note, this historical accounting provides critical context for the 2018 nationwide prison strike — showing how it is part of a significant, two-century-old tradition that has enabled prisoners, otherwise deprived of an outlet, to air intensely held grievances, express themselves, and demand reform from prison administrators, courts, lawmakers, and the broader public.
In light of this background, this Note considers a first-order question about the strikes that bears critically upon their success: What is the legal status of prison strikes? Are they protected activities that prisoners can legally engage in? While the analysis above would suggest that strikes merit some protection, Part II below indicates that this is not the case under current law.
II. Legal Framework Governing Prison Strikes:State Law and Federal Statutes
As a threshold matter, state and federal statutory law provides no recourse for protecting prison strikes. Incarcerated individuals are not included as protected “employees” in the text of federal labor laws like the Fair Labor Standards Act78 and the National Labor Relations Act,79 and courts have refused to extend the protections that these statutes offer to those confined within prison walls.80 Further, this Note is aware of no state labor laws, or for that matter any state constitutional provisions, that have been interpreted to allow prisoners to strike.
Not only are prison strikes not protected by statutory law — they also are often explicitly prohibited. State statutes and prison regulations pose the most immediate barrier to prison strike activity, as states across the union appear to categorically bar prison strikes and other forms of inmate collective organizing. For instance, Alaska’s administrative code lists “participation in an organized work stoppage” and “encouraging others to engage in a food strike” as “[h]igh-moderate infractions.”81 The same is true at the federal level, as the Bureau of Prisons has made “[e]ngaging in or encouraging a group demonstration” and “[e]ncouraging others to refuse to work, or to participate in a work stoppage” prohibited acts.82
Further research is certainly necessary to develop a fuller, more nuanced treatment of the various state and federal statutory schemes that impact prison strikes.83 But even this brief overview drives home a clear bottom line: that state and federal laws, in their current forms, likely offer no viable protection for prison strikes and indeed often prohibit them outright.
The Supreme Court has not spoken directly on the question of whether peaceful prison protests merit constitutional protection. However, two areas of constitutional analysis — prisoners’ rights broadly and prisoners’ First Amendment rights specifically — suggest that under current law, the answer to this question is likely also a resounding no.
1. Prisoners’ Constitutional Rights Generally. — Section 1 of the Thirteenth Amendment states: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”84 By its express terms, the amendment creates an explicit exception for persons serving a sentence pursuant to conviction of a crime, and it therefore offers prisoners no basis to refuse to work or to engage in other forms of peaceful strikes.85
Despite the Thirteenth Amendment’s clear textual carve-out, courts have not, in modern times, read the wording of the amendment literally to allow the State to treat inmates like slaves.86 According to the Court, “[t]here is no iron curtain drawn between the Constitution and the prisons of this country.”87 Instead, as neither slaves nor free people,88 inmates retain some (but not all) of their constitutional rights when they cross into the prison.89 The Supreme Court has time and again asserted that “[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights.”90 This is the case not only because of the inherently “deprivat[ory]” nature of imprisonment,91 but also because prison administrators must be accorded wide latitude in the complex and difficult task of operating a penal institution.92 This deference, however, “yield[s] to the strictures of the Constitution.”93 Indeed, courts recognize that inmates, despite being incarcerated, retain particular constitutional rights “that the courts must be alert to protect.”94 Such rights that an inmate retains are those “that are not inconsistent with his status as a prisoner or with the legitimate penological objective of the corrections system.”95
However, as the Court explained in Turner v. Safley,96 a prison regulation may infringe on a prisoner’s retained constitutional rights as long as “it is reasonably related to legitimate penological interests.”97 Turner identified four relevant factors in determining the reasonableness of a prison regulation: (1) whether there is “a ‘valid, rational connection’ between the regulation and the legitimate governmental interest [advanced] to justify it”;98 (2) whether alternative means for exercising the asserted right remain available;99 (3) whether accommodation of the asserted right will adversely affect “guards[,] other inmates, and . . . the allocation of prison resources generally”;100 and (4) whether there is a “ready alternative[]”101 to the regulation “that fully accommodates the prisoner’s right at de minimis cost to valid penological interests.”102
So, under the general legal framework for prisoners’ rights, finding constitutional protection for peaceful collective actions like the 2018 prison strike will likely face an uphill battle. Such a right to strike not only must fit within the confines of a “retained right,” which appears to be narrowly defined; it also must go up against Turner and its progeny, which mandate rational basis review for any prison regulation — providing prison officials with broad deference to curtail any rights that a prisoner might retain.103 Turning to prisoner First Amendment jurisprudence specifically, it becomes even clearer that a right to strike likely cannot navigate either difficulty successfully.
2. Prisoners’ First Amendment Rights. — The First Amendment of the Constitution includes within its guarantees political rights to communicate, associate, and present grievances to the government.104 These rights go to the very heart of our political system — one that, as a democracy, values the participation of its citizens.105 Outside of prison walls, the Supreme Court has recognized that individuals may, in many situations, exercise their First Amendment associational rights by peacefully engaging in a work strike.106 Inside prison walls, however, the right to strike is a legal gray area. The Court has analyzed a number of First Amendment rights, including those implicating concerted political activity and association, in the prison context — asking whether (1) the First Amendment right in question is inconsistent with an inmate’s status as a prisoner and (2) prison officials’ interference with such a right reasonably relates to a legitimate penological interest.107 However, the Court has yet to perform such an analysis for prison strikes specifically.
But one seminal Supreme Court case — Jones v. North Carolina Prisoners’ Labor Union, Inc.108 — casts serious doubt on prisoners’ collective right to strike. In Jones, a prisoners’ labor union109 brought an action under 42 U.S.C. § 1983, claiming that the North Carolina Department of Corrections violated its First Amendment rights110 by promulgating a prison rule that prohibited, among other things, union meetings among inmates.111 The three-judge district court agreed, granting substantial injunctive relief to the union.112 The Supreme Court reversed, however, doing so on two main grounds. Writing for the majority, then-Justice Rehnquist first invoked the familiar notion that “[t]he fact of confinement and the needs of the penal institution impose limitations on constitutional rights,” especially First Amendment associational rights.113 Then, without engaging with the specific nature of the potentially retained associational interest in question (that is, that of organizing as a union), Justice Rehnquist concluded that the challenged regulation did not unduly abridge inmates’ First Amendment rights.114 He did so by adopting a rational basis test — emphasizing the critical importance of “wide-ranging [judicial] deference” to prison officials and their informed discretion in carrying out penological goals.115 In particular, Justice Rehnquist argued that “[r]esponsible prison officials must be permitted to take reasonable steps to forestall” the “ever-present potential for violent confrontation” within prisons.116 And as he highlighted, North Carolina prison administrators had testified that the presence of, and potentially even the very objectives of, a prisoners’ union did potentially pose a danger117 — likely resulting in increased friction between inmates themselves or between inmates and prison personnel, as well as in “easily foreseeable” outcomes like “[w]ork stoppages.”118
In light of Jones, it is unlikely that the Supreme Court would, if the question came before it, recognize inmates’ First Amendment right to strike. Although the case concerned the specific issue of prison unions, the Jones Court’s holding was, in its methodology and reasoning, far-reaching — (1) providing prison administrators with wide latitude to curtail any inmate collective activity that, in their “reasonable” judgment, threatened institutional order and security119 and, as a result, (2) appearing to severely curtail inmates’ First Amendment rights.120 The Court’s broad deference and narrow First Amendment view should therefore naturally be expected to extend to prison strikes and other forms of collective protest, about which prison officials have consistently offered similar safety concerns and which they have uniformly sought to ban,121 and which Jones specifically acknowledged as a possible unwelcome outcome of allowing prisoners to unionize.
That Jones likely prevents any constitutional protection for prison strikes — and therefore liberally protects prison regulations banning strike activities — is reinforced by how the Supreme Court has applied the case over the past forty years. In Turner, for example, the Court rejected efforts to cabin Jones to barring only “‘presumptively dangerous’ inmate activities.”122 The Court specifically discussed Jones as part of a line of “prisoners’ rights” cases permitting “reasonable” prison regulations to impinge on inmates’ constitutional rights123 and ultimately relied in part on Jones to fashion its general four-part framework for assessing “reasonableness” across prison regulations.124 And in Overton v. Bazzetta,125 the Supreme Court again invoked Jones to emphasize that “freedom of association is among the rights least compatible with incarceration”126 — though it declined to draw any precise boundaries that would be helpful for determining what, if any, associational rights inmates retain within prison walls, and whether those include strikes.127
Lower courts have not been as wary to draw such boundaries. Under Jones, lower federal courts have uniformly held that prisoners have no constitutionally protected right under the First Amendment to strike. One district court interpreted Jones to hold that prison officials may act to prevent such strikes whenever they have a “good faith” belief that such strikes “threaten the security of the institutions they manage.”128 Lower courts have rejected a right to strike by simply citing to or briefly discussing Jones and contending that it naturally compels such a result,129 or by drawing an explicit connection between the prohibited prison unions at issue in Jones and prison strikes, dubbing strikes to be “a species of ‘organized union activity.’”130 They have also done so by delving into the specifics of why strikes purportedly pose safety and security risks within prisons and why prison regulations barring strikes are therefore rationally related to legitimate penological goals.131
Lower courts also have justified upholding prison regulations barring strikes by explicitly or implicitly turning to the general Turner framework that Jones helped create — including by arguing that there are ready alternatives to prison strikes,132 or that such regulations are generally permissible exercises of penal authority.133 And finally, it is worth noting that lower federal courts have, in deferring to prison officials’ judgments regarding security, also permitted all manner of regulations designed to punish strikers134 and aid officials in preventing strikes from occurring.135 In short, there exists little, if any, room under current constitutional case law for protecting prison strikes.
III. Considering a Right to Prison Strikes
Many have critiqued the legal framework governing prisoners’ rights. For example, a number of scholars compellingly argue that employment and labor laws should cover inmates working in prisons — placing them within “the scope of protections and support gathered around the honored figure of the worker.”136 Scholars have also critiqued courts’ stringent interpretation of the Thirteenth Amendment as allowing for forced labor within prisons.137 And many scholars have roundly criticized the Jones decision, and Turner’s framework more broadly, for granting far too much deference to prison administrators and paying only lip service to prisoners’ constitutional rights. Prison law scholar Professor Sharon Dolovich, for instance, critiques both Jones and Turner for prescribing such strong deference to prison officials, who are consequently able to violate inmates’ constitutional rights simply by asserting unsupported security concerns.138
Despite these critical appraisals of prisoners’ rights more broadly, no similar concerns have been raised regarding the constitutionality of barring prison strikes. Indeed, commentators (and even many prisoners’ rights activists), while arguing that courts should afford less deference to prison administrators and protect inmates’ right to form and join unions, have stopped well short of arguing for protecting prison strikes.139 For that matter, the subject has received little, if any, attention; no First Amendment or prison law scholars or advocates have questioned whether lower courts should apply Jones and Turner in such a rote fashion to broadly defer to prison officials in barring prison strikes, and to do so with little consideration of the potential value of these strikes.
Perhaps this is because the security- and safety-based arguments in favor of barring prison strikes are relatively straightforward and admittedly have some intuitive appeal. Prisons, in order to “function optimally,” require “heavy rule orientation” — as chaotic institutions, they depend on rules governing “every aspect of prison life,” and on the ability of prison officials to enforce these rules.140 A prison strike — whether it involves inmates not showing up to work or refusing to eat — flouts these rules141 and therefore inherently calls into question officials’ authority and ability to run prisons. More specifically, strikes pose a nontrivial threat of causing violence within prisons. This is the case for many of the same reasons identified by the Jones Court in its evaluation of prisoners’ unions. Prison strikes occur within already tense environments, where the threat of violence, from both prison administrators and other incarcerated individuals, is ever present; they occur in a dramatically different context than strikes outside of prisons, where each side is able to make comparable demands and concessions; and, as a result of these factors, they potentially exacerbate the friction and adversarial relationships between inmates and administrators.142
But in order to ensure that the Constitution truly does not stop at the prison walls, courts cannot simply accept prison administrators’ fears regarding strikes at face value and instead should rigorously test their credibility and basis in fact.143 And more importantly, by over-deferring and failing to engage in any analysis of the merits of prison strikes, courts miss an important opportunity. As this Note has argued, prison strikes represent an underappreciated aspect of prison life — the means by which prisoners have, throughout the course of American history, surfaced pressing problems of our carceral state and initiated important transformations in our prison system. Therefore, it is imperative to meaningfully consider why and how such strikes merit legal protection — even if such protection appears to fly in the face of the current state of the law and to defy conventional wisdom. To that end, this Part first explores the First Amendment as one potential avenue for considering the merits of prison strikes, by presenting three critical First Amendment values contained within prison strikes,144 and it then briefly discusses other potential legal avenues for courts and scholars to consider.
The right to strike within prisons may be conceptually viewed as a composite of three separate fundamental First Amendment freedoms: the freedom to peacefully associate, the freedom of speech, and the freedom to assemble and petition for redress of grievances.145 Each is considered in turn.
1. Association. — The right to peaceful association is one that captures the right of individuals to commune with others for the expression of ideas and for effective advocacy.146 Strikes, like prison unions, represent an important means of association for prisoners — allowing them to “lay claim to a social identity as ‘workers’ . . . and in doing so generate claims to respect and solidarity.”147 This identity and solidarity can, in turn, enable inmates to engage in productive and peaceful bargains with prison officials for better conditions, higher pay, and other reform desires.
Bargaining is, in many respects, already very common in prisons, “for the simple reason that [prison] administrators rarely have sufficient resources to gain complete conformity to all the rules.”148 However, such bargaining typically happens in an informal, ongoing, private process;149 in their recurrent, day-to-day contact with inmates, prison administrators use their arsenal of tools150 to “negotiate” only with select inmate leaders,151 with the central goal of maintaining “short term surface order.”152 This informal bargaining is “dysfunctional” to the long-term stability of prison institutions and “the real needs of those incarcerated within” them153 — creating hierarchical relationships154 that breed mistrust155 and leave many inmates powerless and feeling aggrieved.156 As a result, inmates often feel that they have to resort to violence to protect themselves from exploitation, express their dissatisfaction, and obtain redress.157
Alternatively, peaceful, collective prison strikes avoid these harmful consequences by allowing for “open” and “formal” negotiations between all inmates and prison staff.158 Such transparent and legitimated bargaining benefits both inmates and prisons as a whole. By initiating peaceful protests such as work stoppages, all inmates are able “to solve problems, maximize gains, articulate goals, develop alternative strategies, and deal with [administrators] without resorting to force or violence.”159 And by permitting peaceful strikes, prison administrators “provide inmates with a channel for airing grievances and gaining official response . . . giv[ing] the institution a kind of safety-valve for peaceful, rather than violent, change”160 — avoiding potentially expensive and time-consuming litigation and even helping rehabilitate inmates,161 all while deemphasizing hierarchical structures in prisons that harm institutional order.162
2. Speech. — A prison strike also represents a critical way by which inmates can express themselves.163 First, as alluded to above, a strike allows inmates to claim and communicate an identity — as more than just marginalized, ignored convicts with little to no self-determination, but instead as workers and human beings entitled to basic dignity. Such collective actions represent the “performative declaration and affirmation of rights that one does not (yet) have.”164 And, as Professor Jocelyn Simonson discusses, these strikes are collective contestations to “demand dignity, calling attention to the ways in which [prisoners] are treated as less than human and in the process reclaiming their own agency.”165 Such dignitary considerations, which courts have sought to protect under First Amendment principles, should therefore naturally extend to prisoners attempting to, through strikes, express their basic self-worth.166
Beyond representing a form of inherent, individual expression for inmates, prison strikes also represent a broader form of expression, allowing inmates to be visible to and heard by the public at large. Over the course of American history, inmates — by virtue of being locked up in isolated, impregnable penitentiaries — have largely been a silent and ignored segment of the American population.167 Through peaceful protests like the 2018 national prison strike, however, their suffering, their calls for reform, and their voices are, for the first time, directly expressed on a large scale, ringing out loudly beyond the prison walls and jumpstarting important conversations of criminal justice reform. It is critical to protect such expression; “[i]ndeed, it is from the voices of those who have been most harmed by the punitive nature of our criminal justice system that we can hear the most profound reimaginings of how the system might be truly responsive to local demands for justice and equality.”168
3. Petition for Redress. — Inmates’ strikes can be seen not only as expressions of their dignity and general efforts to express their voices beyond prison walls but also as significant methods of assembly to call attention to specific grievances and seek redress from the government.169
While in theory “[t]here is no iron curtain drawn between the Constitution and the prisons of this country,”170 in practice, “prisons often escape the daily microscope focused on other American institutions such as schools, churches, and government.”171 Courts grant prison administrators wide deference not only in running day-to-day life within prisons but also in restricting press access to prisons.172 Therefore, much of the American public — already closed off from and largely indifferent to the lives of prisoners — is kept even more in the dark about prison conditions and the state of our carceral system as a whole.
Prison conditions, from what has been documented, are horrendous across states. Many prisons are severely overcrowded and seriously understaffed;173 inmates routinely experience physical abuse and even death at the hands of prison guards,174 receive inadequate protection from guards, are deprived of basic necessities,175 are given substandard medical care,176 and are forced to live in squalor and tolerate extreme circumstances;177 most prisoners have minimal, if any, access, to rehabilitative or mental health services;178 and prisoners have little legal recourse, as internal prison grievance procedures are often stacked against inmates,179 and judicial deference and federal legislation have effectively shut the courthouse doors on prisoners’ civil rights claims.180 And across prisons, criminal sentencing laws not only have contributed to an unprecedented era of mass incarceration, but also have forced African Americans and people of color broadly to bear much of this burden.181
As the Marshall Project states, “[s]ociety won’t fix a prison system it can’t see”;182 peaceful prison strikes like the 2018 strike, however, draw back the “iron curtain” of prison walls, bringing to light many of the pressing issues described above. Through these strikes, inmates are able not only to express their grievances to their prison administrators, but also to “publicize their on-the-ground realities to the larger world”183 and, in turn, gain attention from and access to the political branches able to implement policy reforms.184
As recent history has shown, inmates have experienced some success by pressing their claims against the government through publicized strikes. For example, as described above, the California strikes in 2011 and 2013 generated public outcry that eventually resulted in transformations to the California prison system’s solitary confinement policies.185 In Alabama, inmates’ participation in the 2016 nationwide prison strike helped prompt the Department of Justice to open an investigation into the state’s prison conditions.186 And more broadly speaking, strikes like the 2018 strike have begun to “remedy power imbalances, bring aggregate structural harms into view, and shift deeply entrenched legal and constitutional” barriers to critical prison reforms.187
The foregoing analysis suggests that the First Amendment is a critical, worthwhile vehicle for considering the merits of a right to strike for prisoners. As Justice Black recognized, the importance of such analysis likely transcends prisoners themselves. He wrote: “I do not believe that it can be too often repeated that the freedoms of speech, press, petition and assembly guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish.”188
But this Note acknowledges that judicial recognition of prison strikes’ First Amendment values requires significant doctrinal change. Convincing the Supreme Court to overturn its Jones and Turner precedents, and instead to adopt a test with less deference than is currently afforded to prison administrators, is unlikely. As a result, future research is necessary to identify other potential avenues to consider the legal status and merits of prison strikes. As alluded to above, labor law presents one such promising avenue, as does state constitutional and statutory law. Drawing from the broader jurisprudence around hunger strikes, and this area of the law’s focus on the body, may present yet another avenue to consider.189
And more fundamentally, reconsidering incarceration — including the nature of penal punishment, the constitutional status of prisoners, the judiciary’s role in our carceral system, and the ability of social science and social movements to inform the law — may be needed to protect prison strikes and bring about the reforms that strikes have advocated for.
IV. Conclusion
There is a difficult tension in our jurisprudence on prisoners. On the one hand, prisoners are found to enjoy some constitutional rights. On the other hand, prisoners’ rights are often curtailed and must give way to the regulations that prison officials employ to maintain security and order in our correctional system. Allowing prisoners to peacefully strike allows our criminal justice system to navigate this tension, preserving the goals of prison officials while allowing prisoners to surface critical problems in prison conditions and our criminal justice system as a whole. The strikes also represent an important end unto themselves: they are an important statement of prisoners’ humanity, dignity, and entitlement to a life beyond “modern slavery.”