The court ruled that Alabama Governor Kay Ivey and the state’s Department of Corrections Commissioner were protected from the prisoners’ lawsuits by state sovereign immunity.
The court ruled that Alabama Governor Kay Ivey and the state’s Department of Corrections Commissioner were protected from the prisoners’ lawsuits by state sovereign immunity.
Five incarcerated people in Alabama are fighting to push forward a lawsuit, Stanley v. Ivey, challenging the state’s power to punish prisoners who resist forced labor. Despite a state constitutional provision abolishing slavery that was passed in 2022 by referendum, Montgomery County Circuit Court dismissed the plaintiffs’ lawsuit, arguing Governor Kay Ivey and Alabama Department of Corrections Commissioner John Hamm were protected by state sovereign immunity. Emily Early, Associate Director of the Center for Constitutional Rights‘ Southern Regional Office, joins Rattling the Bars to discuss the lawsuit and the plaintiffs’ ongoing fight to have their case appealed.
Studio / Post-Production: Cameron Granadino
Transcript
Mansa Musa: Welcome to this edition of Rattling the Bars. I’m your host, Mansa Musa.
The 13th Amendment of the United States Constitution says that slavery is legal — And they use the term involuntary servitude — They say that anyone duly convicted of a crime can be enslaved and labor can be used for slavery purposes.
Now, the question becomes what happens when a state take that clause and say it no longer should be used? And the state that’s being talked about was one of the crown jewels in slavery, the state of Alabama.
Recently in the state of Alabama, prisoners filed a suit challenging utilization of forced labor and for the abolishment of slavery as we know it. The court ruled that the defendants in the case had qualified immunity and the prisoners had no standing in bringing this suit forward.
Joining me today is Emily Early. Welcome, Emily.
Emily Early: Thank you. Thank you so much for having me.
Mansa Musa: And Emily, tell our audience a little bit about yourself and where you’re from before we unpack this tragedy that’s going on down in Alabama.
Emily Early: Sure. Well first, again, I’d like to thank you for having me on your radio show to educate your audience about this really important issue that exists very much so in many of our own backyards and many people don’t know about forced prison labor and slavery that happens inside the prison walls.
I am an attorney with an organization called The Center for Constitutional Rights, which is a racial and justice advocacy organization founded in 1966. We are headquartered in New York, but we are expanding into the South through our Southern initiative, of which I am the head. My official title is the associate director of our Southern regional office, and I’m also a trained attorney. And again, I live in Atlanta, but I have colleagues who are part of this Southern initiative who reside in Alabama and who are helping to lead the litigation that I’m here to talk about today, as well as another colleague in Atlanta, and one in Jackson, Mississippi.
The case name is Stanley v. Ivey, and, again, was brought on behalf of six individuals who are incarcerated inside of Alabama prisons. I will note that one of our original six plaintiffs, Mr. Dexter Avery, sadly passed away a couple of months ago while he was in the custody of the Alabama Department of Corrections. So I wanted to note that, unfortunately, and to make sure that we say his name in the course of this interview.
The suit was brought on behalf of these individuals who have been punished for not working, or refusing to work. And the defendants whom we sued are the governor of Alabama and the Alabama Department of Corrections Commissioner.
The claims that we brought were intended to, if you will, give teeth or force to the constitutional amendment that the voters of Alabama overwhelmingly voted in support of in November of 2022 that got rid of the exceptions clause, or the prison loophole clause that you were talking about, Mr. Musa, earlier, that exists, though, in Alabama’s state constitution.
After the ratification of the 13th Amendment, each state that decided to become a part of the union also had to ratify their own versions of the 13th Amendment. And so Alabama, like many other states, has its own version of the 13th federal amendment that also excludes from the prohibition of slavery persons who are duly convicted of the commission of a crime. And so in November 2022, voters voted to ratify the constitution to get rid of that prison loophole, or that exceptions clause, as it’s referred to.
Nonetheless, the state government, including the governor herself and the Alabama Department of Corrections commissioner, John Han, enacted executive laws that still proceed to punish people and threaten to punish people for refusing to work and not working. And our clients have been subjected to those laws that were passed, very much so in violation of the 2022 constitutional ratification.
So our suit, again, was filed, like I said, in May of this year. Intentionally we filed on May 1 because we recognize that this lawsuit is not only about pushing up against and eliminating this prison-industrial complex, the system of mass incarceration, but it is also very much an issue of labor rights and ensuring that individuals who are choosing to work and who do work under their own free will have the right protections of safety, adequate pay, fairness, and are treated with dignity and humanity. And this system of forced prison labor inside of the Alabama Department of Corrections that still exists, notwithstanding the constitutional amendment, is very much so not providing workers these principles, these rights, this concept of justice.
So in early August of 2024 of this year, our case was dismissed by the Montgomery County circuit court for not actually qualified immunity but what is called sovereign immunity and standing. The court gave absolutely no reasoning whatsoever in its two-sentence dismissal of this lawsuit.
But what sovereign immunity effectively is, it says that the state or the sovereign, it’s a doctrine that derives from British law that says that the king, the sovereign cannot be sued. And if the king or the sovereign or the head of state is sued then, as a matter of policy, everything that the sovereign does could be subjected to a lawsuit.
And so this doctrine of sovereign immunity was created centuries ago, and it’s adopted into many states common law, in statutes, even in federal law in one form or another. And again, that just says that the government and officers and instrumentalities of the state cannot be sued. However, there are rules that have to be met or elements that have to be met before sovereign immunity even can be triggered before it comes into play. And even if those elements are met, there are exceptions to sovereign immunity.
So our position is that sovereign immunity does not apply to this case because our clients are seeking what’s called forward-looking or prospective relief, meaning an injunction to stop the governor and the Alabama Department of Corrections from enforcing these laws that violate Section 32 of the Alabama Constitution that outlaws prison slavery, and also a declaration that declares that what these laws are doing violate Section 32 of the constitution. So because that’s the form of relief that our clients are seeking, sovereign immunity doesn’t apply.
Mansa Musa: I mentioned earlier that we interviewed two members of a union who was involved with being co-plaintiffs in a suit, and I want our audience to know that, as you clarify, Emily, this not necessarily having anything to do with what y’all talking about, but the reality is that they complained about the same conditions that you’re complaining about and that’s being brought to the court’s attention, the inhumanity, the cruel and unusual punishment that’s taking place as it relates to men and women that’s in the Alabama prison system.
But talk about why you think that the state of Alabama, specifically the governor and the Department of Corrections, why you think that they’re taking such a staunch position to ensure and maintain this forced labor system. Because as you said, the state of Alabama, the citizens in the state of Alabama ratified the constitution eliminating any use of forced labor by getting rid of the exception clause in the state constitution. Why do you think that they’re so adamant about holding fast to this particular position?
Emily Early: Well, I think it’s because of two justifications among others, but the two I’ll focus on here today are profit, number one, and you talked about that earlier in the interview. And number two is controlling the bodies that are inside of the prison system, which are overwhelmingly Black and low income. And as it concerns the motivation of profit, the prison system in Alabama — And I would also go as far as to say in many other states — Could not function if they did not rest on, rely on the labor of incarcerated individuals.
Incarcerated workers inside of Alabama Department of Corrections prisons, they cook the food that incarcerated individuals eat. They clean the bathrooms, the hallways, the dormitories, the grounds outside of the four prison walls. They also work — And this is a piece that I haven’t covered as much, but our lawsuit also focuses on this — They are also contracted out to private industries.
Even some of the restaurants that we frequent often in our very own communities, McDonald’s or Buffalo Wild Wings, they’re also cooking and cleaning and performing at these fast food restaurants. And then they take a van that they have to pay for, it comes out of their own pay, that Alabama Department of Corrections transports them to and then picks them back up, and then they come back and then they sleep back inside of the prison walls.
And there also are some incarcerated individuals who are performing security functions because the staff, the prison system is so understaffed and overworked. And so sometimes there are even individuals who are performing some of those same security functions that correctional officers would perform. So it definitely is profit. The Alabama Department of Corrections makes hundreds of thousands of dollars off of the backs of Black and Brown bodies inside of the prison system.
And the second justification for why the state is resisting and forcing this constitutional ratification, which relates to the first reason, is it is an extension, the prison slavery is an extension of slavery, a method used to control and dehumanize and subjugate individuals who are Black in society. And because they are now in this system of incarceration, I think there is very much an attitude, not just among the state government, but, unfortunately, among many in our society and in our community, that we can just do away with people who are inside of prison walls.
And that is not the case. That should not be the case at all. And they still deserve to be treated with dignity and humanity. And if they choose to work, then they should be provided with the same protections that those in the free world have.
Mansa Musa: I want to unpack that as well because I was locked up 48 years prior to getting released. And at one time during my incarceration, I worked what we call industry, that’s what most prisoners referred to it as, industry. And they have with Maryland, MCE, Maryland Correctional Enterprises, and Maryland Correctional Enterprises is legislated by the state of Maryland. This particular corporation is legislated by the state of Maryland and all the labor for, they automatically get, they don’t have to bid for no contracts for state property to make the furniture, anything relative to the state. The chemicals that’s used in the institutions and in government buildings, the uniforms that the officers wear, the clothing that we wear, all these products are made by prisoners in MCE. The furniture for the state house is made by prisoners in MCE.
One, we wasn’t getting minimum wage. Two, we didn’t have no healthcare plan. Three, we couldn’t buy into social security. And four, in order to get any type of, which was considered money, we had to do an enormous amount of work in order to get a bonus.
And I was looking at the state of Alabama, the fact that they outsourcing the labor in Alabama and the fact that they’re outsourcing it. And most of these people in the work release or pre-release environment, they’re not getting, one, they’re not getting minimum wage, and, if I’m not mistaken, in some cases they’re paying for their own room and board. And you can correct me if I’m wrong on that. I know they’re paying for transportation.
And the last thing I noticed in the conversation we had was that in order to maintain the labor pool, they was denying people parole or the ability to progress through the system because they didn’t want to lose their labor. In y’all suit or y’all fact finding, did any of this come up?
Emily Early: As far as the parole piece, it’s not something that we have highlighted directly in the suit, however, it’s something we’re very keenly aware of, that the rate of parole grants in Alabama is abysmal. It’s very, very low. And for that reason, we actually are representing a couple of our clients who are clients in the forced prison labor, Stanley v. Ivy case, in their parole hearings. And even there in our representation, at least on the first try, two of our clients were denied parole.
But that’s something that we’re keenly aware of. And I agree with you, Mr. Musa, that yes, the denial of parole, I think, is tied, in one way or another, to the state’s need to keep people incarcerated to continue to profit off of their labor and to continue to keep the system running.
Mansa Musa: Another observation that was made in our previous conversations was that the fact that the utilization of prison labor automatically stopped, infringes on the rights of people having society to work. So I got cheap labor on the prison-industrial complex. I can take this labor, the same labor, and outsource it to, like you say, fast food restaurants, butcher shops, anywhere that they need labor, and they could have unions there, and I’m undermining the unions and undermining the ability for people to get minimum wage or living wage because I got cheap labor.
Do you think that this has something to do with the fact that it’s the relation between the business community has a hand in ensuring or maintaining this particular standard of slavery in the Alabama prison system? Is a connection between the business community in conjunction with the governor or the state in order to maintain cheap labor? Because if I got cheap labor and they don’t have to unionize, I don’t have to pay health, medical benefits, they don’t have to buy into social security, their pension, or none of that. Have you seen that?
Emily Early: No, I haven’t seen that necessarily, if I’m understanding your question correctly. I think what I do agree with, and I’m gathering from your statements, is that individuals who are incarcerated within the Department of Corrections in Alabama but are contracted out to private employers don’t have to be paid health insurance, 401k, if they qualify for it, and I think that is the case. However, and many of the folks that we did speak to — And I’m not saying this is the case across the board — But many of the folks whom we spoke to in our investigation were paid the same as free world workers and I think have to be paid. They cannot be paid less.
But what happens is the State Department of Corrections takes out 40% of their paycheck and it goes back to the state prison system. And so while they may be paid the same as some individuals who are free world workers, they don’t have the same take home pay. And that’s because the Department of Corrections is taking out its own cut, fees for transportation, fees for laundry, fees for the commissary. Right there, you mentioned room and board, and that is the case as well where, in some jails and prisons, individuals have to pay for their own incarceration.
Mansa Musa: My understanding is that they don’t have the right to say, I don’t want to work. If they don’t work, then they’re being punished even if they’re being given, in the state system they call it infractions. They’re being given disciplinary charges for refusing to work. Is that something that came out in the course of your investigation or gathering the facts of the suit?
Emily Early: Sure. So if people have been assigned to work and they are unable to work for whatever reason, or even if they refuse to work because the conditions are not safe, as happened with one of our clients, Mr. Reginald Burrell, who was injured while working at a furniture store in the free world community and was disciplined for saying he was not going back because it was not a safe environment.
That very much so is what is happening inside of the Department of Corrections where individuals, they cannot work, they refuse to work, they exercise a choice that they should have to not work for whatever reason, and then are consequently written up. That has happened to each of our plaintiffs. That threat remains and is ongoing because of these laws that the Alabama governor and the Department of Corrections commissioner and the Alabama legislature enacted after Section 32 of the constitution was ratified.
So each of those provisions, they relate to one another. And what they effectively do is authorize disciplinary reports and write-ups for literally refusing to work or failing to work or failing to report to work.
And the consequences of those disciplinary write-ups are extra duty, so individuals can be assigned even more work, which can effectively lengthen their sentence; They can lose privileges such as visitation with family and friends who come to visit them, which is very key to their survival and mental health and stability while on the inside; They can also be transferred to more dangerous prisons, which has also happened to some of our clients as a result of a disciplinary write up; They also can lose their good time credit, which is a system where folks earn, effectively, days of time that can be knocked off their sentence for good behavior. But if they’re written up, then they can lose a lot of good time, which, once again, extends or re-extends their sentence.
So they’re being punished over and over and over again, even though they were sentenced to incarceration and, effectively, are now being sentenced to labor, to slavery, to involuntary servitude inside the prisons.
Mansa Musa: And you know what, as you was talking, I was reminded of, I think the case was Sardin v. O’Connor, it’s a US case that came out with the concept of in order to prove an 8th Amendment claim or a claim relative to the conditions, you had to show atypical and significant hardship. You had to show that whatever you was complaining about was atypical and had significant hardship on you.
And I remember when they first came out with this concept, a lot of legal scholars unpacked it and was showing how difficult it was to meet this standard. But I was looking up in the Alabama prison system, it’s one of the most cruel, inhumane prison systems in the country. Some of the prisons — And that’s one of the things I was made aware of in terms of getting people to work — They threaten to transfer them to some of the more notorious prisons in order to pretty much get them to change their mind about not wanting to work.
But talk about going forward, what do you think the standing, what do you think the court, the higher court, going to do in terms of recognizing y’all claim that they don’t have sovereign immunity and that what y’all arguing and the issue that y’all raising has standing?
Emily Early: Sure. So we’re not sure what the court will do, but of course our hope is, and we think we’re right, is that the court will reverse the circuit court’s dismissal of the case and the judgment that the circuit court entered in favor of the defendants, and remand or send the case back to the circuit court. So the case would then be reinstated, and we would continue to litigate the case.
We think that we are right on the law. We think that the circuit court was absolutely wrong on sovereign immunity. It’s very clear that this is a case that does not trigger sovereign immunity, and even if it does, it meets one of the exceptions. And on standing, we think that our clients have fled the claim that shows that they were injured by these three laws, the Executive Order no. 725, the Administrative Regulation 403 that was promulgated in response to the executive order, and then the Alabama statutory code provision that also punishes folks for refusing to work, that all these laws have harmed our plaintiffs, and the defendant’s continued enforcement of these laws harms our plaintiffs, and the lawsuit that they have brought for injunctive and declaratory relief will redress or resolve those harms.
So we think that they have the standing necessary to raise these claims to enforce their right under Section 32 of the Alabama Constitution. So again, we think we’re right on the law, and we can only see what the court will say once the defendant submits their brief and we submit a reply brief. We are also requesting oral argument, so there may be an opportunity for us to go before the Alabama Civil Court of Appeals to have our day in court on behalf of our clients to plead our case.
Mansa Musa: OK. Thank you, Emily. And as we close out, tell our audience how they can stay on top of this or keep being informed about what’s going on with this lawsuit, and how they can track some of the work that y’all are doing.
Emily Early: Sure. Well, they can absolutely follow us on all the major platforms. Again, our organization is the Center for Constitutional Rights. Our website is ccrjustice.org. And this case is titled Stanley v. Ivy, and it’s currently pending in the Alabama Civil Court of Appeals. You can find a specific case page also on our ccrjustice.org website about Stanley v. Ivy. So if you just Google it, you can get updates. And again, we do try to update our casework on all the major social media platforms.
Mansa Musa: Thank you very much. You rattled the bars today, Emily. And we want to remind our audience that we’re talking about humanity. We’re talking about people who has been duly convicted, but the sentence was what they were serving. The crime, you have crime and punishment, the crime that I committed, and then the punishment is the time that I’m given. The punishment is not that I be leased out in forced labor and subjected to inhumane working conditions and don’t have no redress.
And so we asking that you really look into this situation that’s going on and ask yourself, would you want to wake up one day and find out that you cannot refuse to work? And that if you refuse to work, that you’re going to be subjected to more punishment, more cruelty, only because someone chooses to ignore the will of the citizens of the state of Alabama.
Thank you, Emily. We appreciate you.
Emily Early: Thank you so much for having me.
Mansa Musa: And we ask that you continue to support The Real News and Rattling the Bars. It’s only because of The Real News that you get this kind of coverage of what’s going on in Alabama, what’s going on throughout the United States of America and the world. And guess what? We’re actually the real news.
Republish our articles for free, online or in print, under a Creative Commons license.
