Nothing in this subsection shall be construed to forbid the sale of such goods or merchandise to other political subdivisions, public authorities, municipalities, or agencies of the state or local governments to be consumed by them or to agencies of the state to be in turn sold by the agency to the public in the performance of the agency's duties as required by law. This subsection does not prohibit the sale of unprocessed agricultural products produced on state property.
(Ga. L. 1956, p. 161, § 22; Ga. L. 1957, p. 477, § 4; Ga. L. 1968, p. 1092, § 1; Ga. L. 1968, p. 1399, §§ 2, 3; Ga. L. 1971, p. 581, § 1; Ga. L. 1972, p. 577, § 1; Ga. L. 1984, p. 651, § 1; Ga. L. 1985, p. 149, § 42; Ga. L. 1992, p. 6, § 42; Ga. L. 1993, p. 629, § 1; Ga. L. 1997, p. 851, § 2; Ga. L. 2000, p. 1584, § 1; Ga. L. 2001, p. 1090, § 1; Ga. L. 2003, p. 252, § 4.)
Cross references.- Hiring out of inmates for public road projects, §§ 32-4-42,32-4-91.
Correctional Industries, T. 42, C. 10.
Use of inmate labor to abate hazard presented by abandoned well or hole, § 44-1-14.
Law reviews.- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 230 (1997).
JUDICIAL DECISIONS
Editor's notes.
- In light of the similarity of the statutory provisions, annotations decided under former former Code 1882, § 4310, former Penal Code 1895, § 1137 et seq., and former Penal Code 1910, § 1166 are included in the annotations for this Code section.
Charge against county for labor.
- There was nothing in former Penal Code 1895, § 1137 et seq. authorizing or requiring a charge to be made against a county for the labor of misdemeanor convicts sentenced by the courts in such county to work on the county's chain gang (now county facilities or programs). Binns v. Ficklen, 130 Ga. 377, 60 S.E. 1051 (1908) (decided under former Penal Code 1895, § 1137 et seq.)
Convict cannot be hired out to a private individual. County of Walton v. Franklin, 95 Ga. 538, 22 S.E. 279 (1894) (decided under former Code 1882, § 4310).
Law requiring county to pay for hire of misdemeanor convicts.
- Special law requiring the county to pay for hire of misdemeanor convicts was unconstitutional, there being a general law relating to this subject. Binns v. Ficklen, 130 Ga. 377, 60 S.E. 1051 (1908) (decided under former Penal Code 1895, § 1137 et seq.)
Supervision of prisoners discretionary function.
- Supervision of a prisoner work detail is a discretionary function by virtue of which the supervisor is entitled to official immunity. Parrish v. State, 270 Ga. 878, 514 S.E.2d 834 (1999), reversing Simmons v. Coweta County, 229 Ga. App. 550, 494 S.E.2d 362) (1997).
Cited in Williams v. Georgia Dep't of Cors., 224 Ga. App. 571, 481 S.E.2d 272 (1997).
OPINIONS OF THE ATTORNEY GENERALANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, opinions decided under former Code 1933, § 77-325 are included in the annotations for this Code section.
Negotiation for use of prison labor in roads construction.- Any agreement for the use of prison labor in constructing roads by the state must be negotiated by the Highway Department (now Department of Transportation) and the governmental unit having custody of the prisoners. 1969 Op. Att'y Gen. No. 69-5.
Board is authorized to develop service-type industrial program such as furniture refinishing, but such programs may not be developed by the Georgia Prison Industries Administration (now Georgia Correctional Industries Administration). 1970 Op. Att'y Gen. No. 70-156.
Transporting prisoners to job site.- No legal problem exists in transporting prisoners by barge to a job site. 1969 Op. Att'y Gen. No. 69-5.
Rules governing payments to inmates.- Place of confinement is irrelevant; if a state prisoner is engaged in an endeavor which may be classified as "industry," the prisoner would be eligible for incentive pay upon the adoption of an appropriate administrative rule; state prisoners confined in county public works camps (now county correctional institutions), would be paid from funds available to the board as no provision was made for payments from county funds. 1968 Op. Att'y Gen. No. 68-464.
Rules Governing Hiring Out Inmates
1. In General
Board prescribes conditions of work required of prisoners and retains administrative responsibility, etc., of prisoners. In view of the broad language found in subsection (e) of Ga. L. 1957, p. 477, § 4 (see now O.C.G.A. § 42-5-60) that prison labor could be required in public buildings in any such manner as deemed advisable by the Board of Offender Rehabilitation (Corrections), it is obvious that the legislature intended the board to prescribe the conditions of work required of the prisoners; and even though some of the prisoners are physically restrained for overnight periods in county jails, their primary assignment is, nonetheless, to the prison or public work camp (now county correctional institution) as determined by the commissioner; in turn the prison or camp has sole administrative responsibility and control of the prisoner even though the prisoner be temporarily attached to the county jail to perform the required repair or maintenance services; such a temporary attachment is not an assignment which contravenes the language of subsection (b) of Ga. L. 1956, p. 161, § 13 (see now O.C.G.A. § 42-5-50). 1963-65 Op. Att'y Gen. p. 72.
Use of prison labor for governmental functions.- Prison labor may be used only in connection with those services and functions of municipalities which are deemed "governmental" in nature as opposed to "ministerial" functions which are those performed by municipalities for profit. 1963-65 Op. Att'y Gen. p. 632.
"Hiring" defined.- Indispensable element of "hiring" is the rendering of services for compensation or something in return - a quid pro quo. 1960-61 Op. Att'y Gen. p. 349.
Permissible use of prisoners.- This section includes no prohibition to the use of prisoners on road projects when federal funds are involved. 1965-66 Op. Att'y Gen. No. 65-52.
Prohibited use of prisoners.- Prisoners in the Georgia penal system may not be leased to the United States Forest Service, which is an agency of the United States government. 1967 Op. Att'y Gen. No. 67-451.
2. Public Works
Public work defined.
- Courts will hold a public work to be any project upon which public funds could be lawfully expended; the underlying factual issue will always be the extent, if any, to which the public will receive common or corporate benefit. 1969 Op. Att'y Gen. No. 69-470.
Granting of an "easement" must not be taken as conclusively establishing the public nature of a works project. 1969 Op. Att'y Gen. No. 69-470.
Permissible works for use of inmates.- It is legally permissible to use inmates of the prison system for daily civic labor in and about a municipality in exchange for the use by the Board of Offender Rehabilitation (Corrections) of an existing prison facility owned by the municipality. 1963-65 Op. Att'y Gen. p. 632.
Presentment of educational programs to civic clubs.- Inmates in the Georgia prison system may, at the discretion of appropriate prison officials, present educational programs to civic clubs, even though the presentation may be in a privately owned facility. 1969 Op. Att'y Gen. No. 69-221.
Erection of hospitals.- Convict labor may be used, under control of county authorities, in erection of hospital by the county hospital authority. 1945-47 Op. Att'y Gen. p. 422 (decided under former Code 1933, § 77-325 prior to revision by Ga. L. 1956, p. 161, § 22).
Building or repairing schools.- County may permit use of convicts in building or repairing a public school building in a municipality if the convicts remain under the control and management of the county authorities. 1945-47 Op. Att'y Gen. p. 423.
Prison labor may be utilized to construct roads on land owned by the state. 1969 Op. Att'y Gen. No. 69-5.
Felony convicts may be used in the maintenance of roads in the state-aid system. 1945-46 Op. Att'y Gen. p. 424.
Inmates may be required to perform labor upon prison property, including the preparation of mobile home sites, if that is what is desired of their labors. 1969 Op. Att'y Gen. No. 69-418.
Farming.- Board of Corrections may enter into an agreement with a county whereby the county gives the prison a crop allotment and allows the prison to farm county property, furnishing the fertilizer and equipment for gathering the crop and in return for which, the county is to receive a portion of the crop grown on the property, with the remainder to be consumed within the prison branch. 1970 Op. Att'y Gen. No. 70-83.
Use of convict labor on private property is permissible when the sole benefit flows to the state, and it is the duty of the Board of Offender Rehabilitation (Corrections) to examine each set of facts and determine whether the state is benefiting in the necessary degree. 1965-66 Op. Att'y Gen. No. 66-119.
3. Private EndeavorsUse of convict labor on private property is permissible when the sole benefit flows to the state. 1969 Op. Att'y Gen. No. 69-158.
Removal and resetting of fences.- Highway Department (now Department of Transportation) can contract with private property owner to use prison labor or state maintenance forces to remove and reset fences upon private property which is to be used as right of way since the utilization of prison labor is to the benefit of the state; the department cannot guarantee to a county that it will perform these acts or expend this money if a county in turn entered into such an agreement with the private landowner which guaranteed to the private landowner that the state would perform such acts. 1969 Op. Att'y Gen. No. 69-158.
Removal of buildings.- This section would not prohibit use of prison labor to remove a building from private property and to reerect the building on state property when the sole benefit would flow to the state. 1958-59 Op. Att'y Gen. p. 250.
Clearing land.- City not prohibited from using prison labor to clear private land under local health ordinance so long as transaction is for good faith public purpose, rather than a subterfuge designed to benefit the private owner. 1958-59 Op. Att'y Gen. p. 248.
Agreement between warden of prison branch and private landowner, whereby in consideration of warden's clearing five acres of land belonging to landowner, the landowner will permit prison branch to occupy land rent free for period of three years, is not illegal so long as the agreement was entered into in good faith, for the purpose of procuring the use of land for the state, rather than as a guise whereby the private landowner is enabled to receive a gratuity from the state, prohibited by Ga. Const. 1976, Art. III, Sec. VIII, Para. XII (see now Ga. Const. 1983, Art. III, Sec. VI, Para. VI). 1958-59 Op. Att'y Gen. p. 248.
Soil conservation projects.
- It is legal to utilize convict labor to remove buildings on private land in connection with soil conservation projects being conducted by soil conservation district supervisors for the purpose of constructing water impounding structures and flooding pools since soil conservation districts are expressly declared to be agencies of the state government by Ga. L. 1937, p. 377, §§ 3 and 8 (see now O.C.G.A. §§ 2-6-22 and2-6-33), whose powers and duties include the erection of soil conservation structures. 1958-59 Op. Att'y Gen. p. 250.
Use of inmate labor to position and level a correctional officer's mobile home site on prison property is not a violation of Ga. Const. 1976, Art. III, Sec. VIII, Para. XII (see now Ga. Const. 1983, Art. III, Sec. VI, Para. VI). 1969 Op. Att'y Gen. No. 69-418.
Convict labor may be used for construction of school gymnasium though private contractor constructing when there are no disbursements or credits for use of such labor between board of education and contractors. 1962 Op. Att'y Gen. p. 379.
Corporation within prohibited category.- Although a corporation is imbued with a community purpose and no profit is contemplated by the stockholders, it is nevertheless clearly within the prohibited category of private persons or corporation. 1963-65 Op. Att'y Gen. p. 317.
Prison labor could not be used in home for aged and infirm to be constructed by county and operated by charitable organization when control and management of home would be in hands of directors of organization; any arrangement whereby the custody, control, and labor of prisoners are vested in private parties would be illegal, and the prisoners would be entitled to relief by habeas corpus. 1958-59 Op. Att'y Gen. p. 246.
Solid waste management facility.- Inmate labor may not be used to work for a solid waste management facility that is operated by a private, for-profit entity, if the labor inures to the benefit of the entity. 1999 Op. Att'y Gen. No. 99-12.
Manufacture of tags for private sale.- Board of Offender Rehabilitation (Corrections) is prohibited from manufacturing tags in the penal institutions of this state for private sale to any person including charitable organizations such as the Veterans of Foreign Wars. 1952-53 Op. Att'y Gen. p. 400 (decided under former Code 1933, § 77-325).
Using prisoners for work on private highways.- Counties may not use prison labor to repair and maintain private driveways which have not been validly dedicated to public use. 1963-65 Op. Att'y Gen. p. 426.
Work on private vehicles.- It is not permissible for inmates of a training and development center for state prisoners to perform work on private vehicles to obtain practice in carrying out procedures learned in the automobile school. 1967 Op. Att'y Gen. No. 67-452.
Sale of Inmates' Products
1. In General
Manufacturing operations conducted by Board of Corrections.- This section is applicable to manufacturing operations conducted by a prison operated by the Board of Corrections other than those manufacturing activities which are carried on by the Georgia Prison Industries Administration (now Georgia Correctional Industries Administration). 1968 Op. Att'y Gen. No. 68-126.
Use of inmates in civilian business.- Real thrust of this prohibition is against actual use of inmates in a civilian business. 1972 Op. Att'y Gen. No. 72-96.
Canned and packed vegetables distinguished.- Canned vegetables are "goods, wares, or merchandise", and packed vegetables are considered "manufactured" or "produced". 1965-66 Op. Att'y Gen. No. 65-28.
"Goods, wares, or merchandise" construed.- Phrase "goods, wares, or merchandise", as set out in subsection (b) of this section, should be construed in its ordinary sense; this means such chattels as are ordinarily the subject of traffic and trade. 1972 Op. Att'y Gen. No. 72-96.
Board is authorized to sell to a municipality goods, wares, or merchandise manufactured, produced, or mined, wholly or in part, by convicts or prisoners. 1954-56 Op. Att'y Gen. p. 530 (decided under former Code 1933, § 77-325).
Hospital authorities may purchase goods manufactured by the Georgia Correctional Industries Administration. 1970 Op. Att'y Gen. No. 70-88.
2. Within State
Selling products produced by prison labor to other departments.
- Board of Offender Rehabilitation (Corrections) is authorized to sell to other departments of the state government any products produced by prison labor in a program of occupational and vocational training. 1948-49 Op. Att'y Gen. p. 286 (decided under former Code 1933, § 77-325).
Solicitation of paid advertisement in inmate publication.- Restrictions on the sale of goods produced by inmates do not prohibit the solicitation and acceptance of paid advertising in an inmate publication. 1972 Op. Att'y Gen. No. 72-96.
3. Outside of State
Sale of goods outside state.
- Although this section does not prohibit the sale of goods, wares, or merchandise manufactured by inmates to firms or corporations outside the state, the words "no goods shall be sold in this state" indicate that no sale can be perfected. 1965-66 Op. Att'y Gen. No. 66-237.
Goods packed out of state.- Subsections (b) and (d) of this section do not relate to goods which have been packed outside of this state by prison labor of another state. 1965-66 Op. Att'y Gen. No. 65-28.
Sales to factories for the blind.- Georgia Correctional Industries Administration may be authorized to sell prisoner-made products to factories for the blind located in other states, providing the local state law does not prohibit the sale of prisoner-manufactured goods. 1974 Op. Att'y Gen. No. 74-157.
Sales to government contractors.- There are no prohibitions in existence under statutes of this state restricting sales of products manufactured or produced by the Georgia Prison Industries Administration (now Georgia Correctional Industries Administration) to government contractors outside the state. 1967 Op. Att'y Gen. No. 67-349.
Sales made outside state excluded.- Due to the fact that subsection (b) of this section prohibits only sales within the state to private persons, firms, associations, or corporations it is to be concluded that this expressed prohibition is to be construed as to the extent of the legislature's sanctions on sales of prison made or produced products and, therefore, that any sales made beyond the state are excluded from these prohibitions. 1967 Op. Att'y Gen. No. 67-349.
RESEARCH REFERENCES
Am. Jur. 2d.
- 60 Am. Jur. 2d, Penal and Correctional Institutions, §§ 141-149.
C.J.S.- 18 C.J.S., Convicts, §§ 2, 16-24.