Metropolitan News-Enterprise


Monday, April 12, 2010


Page 1


Ninth Circuit Rejects Challenge to Prison Inmates’ Wages


By STEVEN M. ELLIS, Staff Writer


Paying imprisoned inmates as little as 19 cents per hour for their work does not violate the Constitution or international law, the Ninth U.S. Circuit Court of Appeals ruled Friday.

A three-judge panel held that neither source grants federal prisoners a judicially enforceable right to any level of compensation for work performed in prison.

Three current and former inmates of federal prisons in California filed a class action in 2008 claiming that payment of such low wages violated their rights under the Fifth Amendment, the International Covenant on Civil and Political Rights, a U.N. document titled “Standard Minimum Rules for the Treatment of Prisoners” and the law of nations.

The plaintiffs—Tony Serra, Jeanine Santiago, and Victor Cordero—worked under the auspices of either Federal Prison Industries, a wholly-owned government corporation known by the trade name UNICOR, or the Inmate Work and  Performance Pay Program.

Serra is a prominent criminal defense attorney from San Francisco who was released from custody in 2007 after serving a 10-month sentence for failing to pay income taxes.

U.S. District Court Judge Martin J. Jenkins of the Northern District of California dismissed before any class was certified, and the Ninth Circuit affirmed in an opinion by Judge Richard R. Clifton.

Clifton said the plaintiffs’ claim that the denial of fair wages violated the Fifth Amendment’s Due Process Clause failed because prisoners are not legally entitled to payment for their work and the clause protects only against deprivation of existing interests in life, liberty or property.

Thirteenth Amendment

He further noted that the Thirteenth Amendment’s prohibition on involuntary servitude specifically excepted forced labor “as a punishment for crime whereof the party shall have been duly convicted.”

Clifton also wrote that the plaintiffs had no viable claim under the International Covenant on Civil and Political Rights because it was ratified on the express understanding that it was not self-executing and did not create obligations enforceable in federal courts.

The covenant is a multilateral treaty adopted by the U.N. General Assembly that became effective in 1976, and commits signatories to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights, and rights to due process and a fair trial.

The judge said the claim under the Standard Minimum Rules for the Treatment of Prisoners—which provide guidelines for international and domestic law as to persons held in prisons and other forms of custody—failed because the rules are not a treaty or legally binding, and he rejected the plaintiffs’ assertion that “the customs and usages” of the nations of the world formed customary international law entitling them to higher wages.

Alien Tort Statute

Clifton pointed out that “the only possible vehicle” for such a claim, the Alien Tort Statute, was unavailable because the plaintiffs were not aliens, and he said there was no issue of international comity present that might cause the court to look to the law of nations.

Courts can look to international law, he observed, under a canon of statutory construction that U.S. law is, where possible, to be construed so as not to conflict with international law or an international agreement.

The canon derives from an 1804 case, Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, in which the U.S. Supreme Court held that the Non-Intercourse Act of 1800 should not be interpreted to permit the seizure and sale of a ship owned by a Danish subject, a neutral in the 1798-to-1800 undeclared naval war between the United States and France.

However, Clifton concluded the Charming Betsy canon did not apply because there was no reason to believe that the plaintiffs’ low wages would embroil the country in a foreign policy dispute, and because “there is nothing ambiguous about the complete discretion that Congress vested in the Attorney General with regard to inmate pay.”

Chief Judge Alex Kozinski and Judge J. Clifford Wallace joined Clifton in his opinion.

The case is Serra v. Lappin, 08-15969.


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