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Transporting or Importing Prison-Made Goods - 18 U.S.C. § 1761

Posted by Dmitry Gorin | Dec 09, 2022

According to Title 18 U.S. Code 1761, it is a federal crime to import or transport prison-made goods in interstate or foreign commerce, such as across state or international boundaries.

This includes any product made in whole or part by convict labor. If you are convicted of violating this law, barring any of the numerous exceptions discussed below, you could face up to 2 years in federal prison.

Transporting or Importing Prison-Made Goods - 18 U.S.C. § 1761

The United States has a serious mass incarceration issue as we imprison a much higher percentage of its population than other developed nations worldwide.

Further, prison conditions have been a hotly debated topic, but essential regulations, such as those prison-made goods, are in place.

18 U.S.C. 1761 says, “Whoever knowingly transports in interstate commerce or from any foreign country into the United States any goods, wares, or merchandise manufactured, produced, or mined, wholly or in part by convicts or prisoners, except those on parole, supervised release, or probation, or in any penal or reformatory institution, shall be fined or imprisoned up to two years, or both.”

Subsection (b) says that this statute does not apply to agricultural commodities or parts for repairing farm machinery, commodities manufactured in a federal institution, or not-for-profit organizations. Let's review this federal law further below.

The Context Behind 18 U.S.C. 1761

The question of the legitimacy and fairness of prison labor has been a hot-button issue for generations. Proponents suggest that putting prisoners to work manufacturing goods and products helps them be productive and serves as part of their rehabilitation.

By contrast, opponents assert that prison labor is a form of exploitation as prisoners are often paid very little for their work and have few rights or protections. Not to mention the damage is done to businesses that can't compete on price because their products were not made by cheap prison labor.

There is also the question of importing goods made by forced prison labor in other countries, where conditions may be squalid, and abuse often runs unchecked.

In 1935, Congress passed the Ashurst-Sumners Act prohibiting the importation and transportation of goods made in prisons, whether in the U.S. or elsewhere, to address some of these concerns and discourage the proliferation of prison manufacturing.

This act became embodied in U.S. law as Title 18 U.S.C. 1761. However, in the years since, an uncanny number of exceptions have been made to this law. As a result, prison manufacturing is still ongoing in the U.S. at certain levels, as is the debate about its ethical ramifications.

What the Law Says

18 U.S.C. 1761 makes it a crime to knowingly transport, in interstate or foreign commerce, any goods or merchandise manufactured by convicts or prisoners in any penal or reformatory institution.

Federal Transport or Import Prison-Made Goods Law

The term “interstate commerce” refers to trade, traffic, commerce, transportation, or communication between two or more states.

The term “foreign commerce” refers to trade, traffic, commerce, transportation, or communication with another country. Effectively, the law criminalizes importing prison-made goods from other countries into the U.S. or transporting prison-made goods across state lines.

To ensure prison-made goods are appropriately regulated and no unlawful misconduct occurs, 18 U.S. Code Chapter 85 covers prison-made goods. Only two statutes, including 18 U.S. Code 1761, cover the transportation or importation of prison-made goods.

18 U.S. Code 1762 covers marking packages associated with prison-made goods and says, “All packages containing any goods or merchandise manufactured or produced by convicts or prisoners, when shipped or transported in interstate or foreign commerce shall be plainly and clearly marked, so that the name and address of the shipper and consignee, the nature of the contents, and the name and location of the penal or reformatory institution where produced may be readily ascertained on an inspection of the outside of the such package.”

What Are the Exceptions to the Law?

Title 18 U.S.C. 1761 includes an extensive list of exceptions to importing and transporting goods manufactured or mined by prisoners, which are not considered federal crimes. These exceptions include the following:

  • Goods made by prisoners on parole, probation, supervised release, or those in a “penal or reformatory institution” without defining those institutions.
  • Agricultural commodities and farm machinery parts. This was likely an exception made to encourage agriculture during the Depression era and beyond.
  • Commodities made in State or Federal prisons for government use. In other words, prison-made goods are okay if they are made for the government. The manufacturing of license plates is a commonly-used example.
  • Commodities made in State or Federal prisons for non-profit organizations, such as for charitable purposes.
  • Goods made by prisoners involved in work pilot projects designated by the Director of the Bureau of Justice Assistance. In these pilot projects, convicts have to receive competitive wages with less than 80 percent withheld and agree to work voluntarily, knowing the terms.
  • Goods made by prisoners involved in FPI-approved work pilot projects outside the United States.

What Are the Penalties for Violations?

If you are convicted of violating 18 U.S. Code 1761 and do not qualify to claim one of the exceptions listed above, it's considered a Class E federal felony offense. If convicted, you will face a fine of up to $250,000 and up to two years in federal prison.

If you are convicted of violating 18 U.S. Code 1762 will be fined, and any goods will be forfeited to the United States and might be seized and condemned by like proceedings for the seizure and forfeiture of property.

What Are the Legal Defenses?

There are a few defenses for those accused of illegally importing or transporting prison-made goods across state lines or into the United States.

The most common defenses naturally fall into two categories: demonstrating a lack of intent or qualifying for one of the above exceptions.

Defenses for Transporting or Importing Prison-Made Goods

Perhaps we can argue there was a lack of intent. Prosecutors must prove that you knowingly transported prison-made goods in interstate/foreign commerce.

If, for example, you run a trucking company and transport goods across state lines while unaware that prisoners had made the merchandise, you can claim a lack of knowledge or intent as a valid defense against the charges.

Perhaps we can argue that you qualify for an exception. If the goods you imported/transported qualify for one of the legal exceptions, such as agricultural products, or products made through an authorized program, you can have the charges dropped.

You can contact our federal criminal defense lawyers for a case evaluation by phone or using the contact form. Eisner Gorin LLP is based in Los Angeles, CA.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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