The Los Angeles wildfires and their devastating effects have drawn attention to a practice long vital to California firefighting: inmate-firefighting.[1] As of January 11, over 900 prisoners have been battling these deadly flames.[2] Inmate-firefighters now make up about 20% of the state’s wildfire force[3] and save the state up to $100 million annually.[4] The practice’s constitutionality has been defended via the so-called “slavery loophole” in the Thirteenth Amendment’s first section, which reads:

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.[5]

When reading the Amendment’s text, it is critical to consider the context of the time in which it was conceived: when slavery was recently abolished, yet racist rhetoric still prevailed, even in the northern states.[6] This context is especially significant when considering the present reality of the United States incarceration system, which imprisons African Americans at over five times the rate of white Americans.[7] Loyola University law professor Andrea Armstrong points out that at the time that the “slavery loophole” was introduced, “Black codes” in the South created vague, new types of offenses, such as “not showing proper respect” and “malicious mischief,” which led to the incarceration of more African Americans than ever before.[8] This aspect of the Reconstruction criminal legal system, according to legal scholar Michelle Alexander, “was strategically employed to force African Americans back into a system of extreme repression and control.”[9]

Inmate-firefighters are only assigned to firefighting positions with their consent.[10] However, under the California Penal Code, all medically-able, incarcerated individuals must work during their sentences, and firefighting is one of three types of work available to inmates.[11] The other two types of work are “daily prison labor” and “prison industry work.”[12] Inmates can “receive punishments” for failing to work during their sentences.[13] Firefighting is one of the most “coveted” jobs in California prisons since it pays more than these alternate roles.[14]

California’s inmate-firefighters are severely underfed[15] and underpaid. Inmate-firefighters receive an hourly pay rate of either $0.16 or $0.74 and a maximum day rate of $5.80 to $10.24,[16] whereas California’s minimum wage is $16.50.[17] Inmate-firefighters can earn an extra $1 during active wildfires, bringing the pay for a 24-hour shift – which is not an uncommon shift length[18]– to $29.80 for the lowest-paid inmate-firefighters.[19] Yet, they perform intense manual labor and face a likelihood of injury that is four times higher than other firefighters due to unsafe working conditions[20] and faulty protective gear.[21] Further, they have an eightfold risk of smoke inhalation compared to other firefighters,[22] as well as a higher likelihood of experiencing burns.[23] A 2022 ACLU report found that in a five-year period, at least four incarcerated firefighters in California were killed while fighting wildfires.[24]

Despite their efforts, former inmate-firefighters are often still unlikely to be employed in firehouses once released due to their records and lack of traditional training.[25] The California Emergency Medical Services’ rules bar someone with one felony conviction from getting emergency medication technician certification – virtually a requirement for aspiring firefighters – for 10 years post-release, and someone with two felony convictions to ever get such certification.[26]

Nevertheless, inmates volunteer for this program for a number of reasons, including inmate-firefighters receiving time off of their sentences for the time that they serve in a fire crew.[27] They also live outside of prisons in fire camps.[28] Amika Mota, a former inmate-firefighter and current criminal justice reform advocate, believes the program “transforms [inmates’] experiences while incarcerated” and would never want such programs to go away.[29] Another former inmate-firefighter, Brandon Smith, expressed that firefighting while incarcerated “gave him a purpose.”[30] Even still, Mota recognizes that firefighter-inmates are treated as “commodities.”[31] And, in regards to time credits, another incarcerated firefighter said that it felt like prison officials “dangle[d] that freedom in front of [inmates] like a carrot on a stick.”[32]

Fortunately, Governor Newsom signed a law which allows released nonviolent inmates who worked in prison fire camps to petition courts to expunge their records in 2020.[33] Additionally, programs, such as the Future Fire Academy, seek to provide training, certification, experience, and job placement to former inmates.[34]

Since the passage of the Thirteenth Amendment, courts have consistently held that the Constitution does not require inmates to be paid for their labor while incarcerated and does not protect inmate-workers under traditional workers’ rights statutes.[35] Under such precedent, the inmate-firefighters in California would not be entitled to a higher wage or safer working conditions. On the other hand, an original intent argument interprets the Amendment in a different manner.[36] Specifically, when the Thirteenth Amendment and its ‘Punishment Clause’ were under consideration, the United States lacked a comprehensive prison infrastructure and had low incarceration rates, favoring a corporal punishment system where labor was the punishment itself rather than part of a sentence.[37] Further, the Amendment’s authors, including Sumner, Trumbull, and Wilson, indicated that the Amendment would eradicate slavery in any of its forms, including the “incidents of slavery.”[38]

Surprisingly, in the 2024 United States election, California voters rejected Proposition 6, which would have banned forced labor in state prisons by removing the “slavery loophole” from the state constitution.[39] If passed, the proposition “would have opened the door to new kinds of legal challenges over working conditions for incarcerated people in the state.”[40]

This month, California Assembly member, Isaac Bryan, introduced a bill that “would pay inmates the same as the lowest-paid non-incarcerated firefighter on the frontlines.”[41] This bill could potentially be made retroactive, and the wages could potentially be financed by emergency federal funding.[42]

The inmate-firefighting phenomenon demonstrates a tension between traditional environmental statutes and the rights of vulnerable individuals and communities in the face of disaster. For example, the California Emergency Services Act (CESA) primarily governs the state’s response to disasters and emergencies, including wildfires, but does not directly address environmental justice concerns, such as who bears the burden of these emergencies.[43] However, the state does have a Cal/EPA Environmental Justice Interagency Working Group that is “charged with identifying gaps in environmental laws, regulations and policies as they relate to EJ and creating a strategy to address such gaps.”[44] It is possible that citizen petitions could persuade them to closely examine CESA and propose amendments. Additionally, at the federal level, Executive Order 12898 requires environmental justice to be incorporated into federal agency policies, programs, and activities.[45] If California and other states that use inmate labor for emergency and disaster relief were to create copycat orders, it could be used to challenge the unsafe conditions that make firefighting riskier for inmates than for their non-incarcerated counterparts.

As the impacts of climate change intensify and natural disasters become more commonplace and destructive nationwide, it is foreseeable that incarcerated individuals will increasingly bear the burden of disaster and emergency relief with little to no compensation or regard for their safety unless something changes. For now, it is important that California takes steps to significantly reform the practice of inmate-firefighting while still leaving the option open to those who may find a sense of purpose from it. A bill like Bryan’s is a promising first step; Californians must urge their elected officials to vote in favor. A bill putting inmate-firefighters’ rights on the same footing as their non-incarcerated counterparts is needed as well. Hopefully, this tragedy will become a catalyst for similar legislation at the federal level and shift judicial attitudes.

 

 

[1] California has been using inmate-firefighters since the end of World War II. Doug Melville, Inmates Can Make Up Nearly A Third of Those Fighting California Fires, Forbes (Jan. 9, 2025, 8:40 AM),  https://www.forbes.com/sites/dougmelville/2025/01/09/inmates-makes-up-nearly-a-third-of-those-fighting-la-fires/.

[2] Amelia Nierenberg, For Just Dollars a Day, Inmates Fight California’s Fires, N.Y. Times (Jan. 11, 2025), https://www.nytimes.com/2025/01/11/us/inmates-firefighters-wildfires-california.html.

[3] Brenna Ehrlich, ‘NO ONE TREATED US LIKE INMATES’: WHY PRISONERS OPT TO FIGHT FIRES, Rolling Stone (Jan. 11, 2025), https://www.rollingstone.com/culture/culture-features/los-angeles-fires-inmates-speak-1235232001/.

[4] Becky Little, Does an Exception Clause in the 13th Amendment Still Permit Slavery?, History (Apr. 20, 2021), https://www.history.com/news/13th-amendment-slavery-loophole-jim-crow-prisons.

[5] U.S. Const. amend. XIII, § 1 (emphasis added).

[6] Little, supra note 4.

[7] Id.

[8] Id.

[9] Little, supra note 4.

[10] Melville, supra note 1.

[11] Alexandra Crosnoe & Vivian Stein, $1 an hour: Experts question low wages for California incarcerated firefighters, Daily Bruin (Jan. 16, 2025, 10:41 PM), https://dailybruin.com/2025/01/16/1-an-hour-experts-question-low-wages-for-california-incarcerated-firefighters.

[12] Id.

[13] Id.

[14] Amy Goodman & Keri Blakinger, Prison Labor in the Spotlight as Incarcerated California Firefighters Risk Lives for $5—10/Day, Democracy Now! (Jan. 14, 2025), https://www.democracynow.org/2025/1/14/california_wildfires_incarcerated_firefighters.

[15] Most of their lunches consist of two pieces of white bread with a few slices of bologna and an apple. Melville, supra note 1.

[16] Id.

[17] State of California Department of Industrial Relations, Minimum Wage Frequently Asked Questions, https://www.dir.ca.gov/dlse/faq_minimumwage.htm (last visited Jan. 19, 2025).

[18] Jamiles Lartey, Shannon Heffernan, & Keri Blakinger, Incarcerated Firefighters Do Risky, Low-Pay Work, The Marshall Project (Jan. 11, 2025, 12:00 P.M.), https://www.themarshallproject.org/2025/01/11/los-angeles-palisades-prisoners-firefighters.

[19] Tammy Webber & Dorany Pineda, On LA fire lines, inmates shoulder heavy packs and tackle dangerous work for less than $30 a day, Times Union (Jan. 18, 2025, 9:34 A.M.), https://www.timesunion.com/news/article/on-la-fire-lines-inmates-shoulder-heavy-packs-20042195.php.

[20] Melville, supra note 1.

[21] Lartey et. al., supra note 18.

[22] Abby Vesoulis, Inmates Fighting California Wildfires Are More Likely to Get Hurt, Records Show, Time (Nov. 16, 2018, 7:40 P.M.), https://time.com/5457637/inmate-firefighters-injuries-death/.

[23] Lartey et. al., supra note 18.

[24] American Civil Liberties Union & The University of Chicago Law School Global Human Rights Clinic, Captive Labor: Exploitation of Incarcerated Workers 14 (2022), https://assets.aclu.org/live/uploads/publications/2022-06-15-captivelaborresearchreport.pdf.

[25] Ehrlich, supra note 3.

[26] Matt Reynolds, Former inmates are battling legal barriers to work as firefighters, ABA Journal (Jun. 1, 2021, 1:50 A.M.), https://www.abajournal.com/magazine/article/former-inmates-are-battling-legal-barriers-to-full-time-work-as-firefighters.

[27] Nierenberg, supra note 2.

[28] Crosnoe & Stein, supra note 11.

[29] Ehrlich, supra note 3.

[30] Reynolds, supra note 27.

[31] Ehrlich, supra note 3.

[32] Nierenberg, supra note 2.

[33] Reynolds, supra note 27.

[34] Ehrlich, supra note 3.

[35] Megan Massie, Locked Up and Trafficked Out: Prison Labor and the Thirteenth Amendment, 19 Univ. of St. Thomas L.J. 498, 501 (Spring 2023).

[36] Id. at 508-09.

[37] Id.

[38] Id. at 509.

[39] Melville, supra note 1.

[40] Lartey et. al., supra note 18.

[41] Webber & Pineda, supra note 19.

[42] Id.

[43] California Emergency Services Act, Cal. Fish & Game Code § 2050 (West 2021).

[44] Office of Governor Gray Davis, ENVIRONMENTAL JUSTICE IN CALIFORNIA STATE GOVERNMENT, California Water Library (Oct. 2003), https://cawaterlibrary.net/wp-content/uploads/2017/05/Environmental_Justice_CA_Govt.pdf.

[45] Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 Fed. Reg. 7629 (Feb. 16, 1994).