Can a NY county correctional facility send inmates to clean up graffiti on private property as well as public property?

Plain-English summary

The Nassau County Correctional Center already ran a graffiti-removal crew that cleaned, removed, and painted over graffiti on county buildings, park facilities, highway apparatus, and abutments. The County Attorney asked whether the crew could expand to remove graffiti on private property too. The county was frustrated that private property owners cleaned up graffiti only to have it return shortly after, and wanted to give them some help.

The AG said no. Inmate labor cannot be used on private property.

The constitutional bar is Article III, § 24 of the State Constitution. The provision says prisoners "shall not be required or allowed to work, while under sentence thereto, at any trade, industry or occupation, wherein or whereby his work, or other product or profit of his work, shall be farmed out, contracted, given or sold to any person, firm, association or corporation." The provision dates to 1894 (per the Constitutional Convention record) and was meant to protect private industry from inmate-labor competition. As applied here, graffiti removal on private property would benefit private property owners, falling within the constitutional bar.

The statutory bar is Correction Law § 177(2). The provision directs inmate labor "primarily" to the counties where the local correctional facilities are located, the towns, cities, and villages therein, manufacture of supplies for public institutions of the counties, and (secondarily) to the State and its public institutions. Private property is not on the list. Inmate labor may be used only for public-property purposes.

The county had pointed to a different statute that uses similar labor: Penal Law § 65.10(2)(h) authorizes courts to require probationers and individuals sentenced to conditional discharge to perform "services in an appropriate community program for removal of graffiti from public or private property, including any property damaged in the underlying offense." But probationers and conditional-discharge individuals are different from inmates serving sentences. Probationers serve outside confinement, with court-imposed conditions; the Constitution and the Correction Law treatment is different. The Penal Law § 65.10 authority does not carry over to inmate labor under Correction Law § 177.

The AG concluded that public-property graffiti removal is permitted but private-property graffiti removal is not. The county's existing public-property program may continue; the expansion to private property is barred.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why is the constitutional bar on private-benefit inmate labor still in force?

The bar dates to 1894 and was meant to address concerns from organized labor about inmate-labor competition with free labor (a serious problem in the late 19th century). The provision has not been amended in substance. Its reach today is the same as in 1894: inmate work cannot be farmed out to private parties or used for their benefit.

Could the county pay private property owners' clean-up costs instead?

That is a different question the opinion does not address. A county-funded grant or reimbursement program to private property owners would be a county expenditure (subject to gift-of-public-funds analysis under the State Constitution and General Municipal Law) but would not involve inmate labor.

Could probationers be used for private property graffiti cleanup?

Yes, but only as a court-imposed condition of probation or conditional discharge under Penal Law § 65.10(2)(h). The probation/CD route is statutorily authorized for both public and private property graffiti removal. It requires court action, which is different from a county-level decision to send inmates to do the work.

What is the difference between an inmate and a probationer for this analysis?

An inmate is serving a sentence of incarceration in a correctional facility. A probationer is serving a sentence under community supervision. The Constitution treats them differently because inmates' labor is more easily subject to involuntary "farming out" while probationers are doing community service as part of their sentence. The 1898 Constitutional Convention drew the line at sentenced inmates specifically.

Could the work be characterized as benefiting the public even on private property?

The opinion considers but rejects this. Graffiti on private property is the property owner's problem; cleanup primarily benefits the owner. Even if there is a diffuse public benefit (cleaner neighborhood), the direct beneficiary is private. The constitutional and statutory bars target direct private benefit.

What about non-Nassau jails?

The same Correction Law § 177(2) and constitutional bar apply statewide. The opinion's reasoning is general. Other county correctional facilities are subject to the same limits.

Background and statutory framework

NY Const Art III § 24 is the constitutional prohibition on private use of inmate labor. The provision sits in the legislative powers article of the Constitution and operates as a substantive limit on how inmate labor can be used. Its history (from the 1894 Constitutional Convention) ties it to labor concerns of the era.

Correction Law § 177 is the statutory framework for inmate labor in local correctional facilities. Subdivision (2) specifies the order of priority for inmate work: first, the home county and its political subdivisions and their public institutions; second, the State and its public institutions. The provision implements the constitutional rule.

Penal Law § 65.10 is the conditions-of-probation-or-conditional-discharge statute. Subdivision (2)(h) is the community service / graffiti removal condition, available by court order in qualifying misdemeanor, violation, class D, or class E felony cases.

Citations

• N.Y. Const. art. III, § 24 (prohibition on private use of inmate labor).
• Correction Law § 177 (inmate labor in local correctional facilities).
• Correction Law § 177(2) (priority: counties first, State second; private not included).
• Penal Law § 65.10 (conditions of probation or conditional discharge).
• Penal Law § 65.10(2)(h) (community service / graffiti removal condition on probation or conditional discharge).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_98-27_pw.pdf

Original opinion text

Opn. No. 98-27
NY CONST, ART 3, § 24; CORRECTION LAW § 177; PENAL LAW § 65.10.
The Nassau County Correctional Center may use inmate labor to clean, remove and paint over graffiti
on public property, but may not use inmate labor to clean, remove and paint over graffiti on private
property.
June 24, 1998
Owen B. Walsh, Esq.
County of Nassau
Office of the County Attorney
Nassau County Executive Building
One West Street
Mineola, New York 11501-4820
Dear Mr. Walsh:
You have requested an opinion regarding whether the Nassau County Correctional Center may assign its
inmates to clean, remove, and paint over graffiti on private property.
You have informed us that the Nassau County Correctional Center currently has an inmate graffiti
removal work crew that cleans, removes and paints over graffiti on County public buildings, County of
Nassau park facilities, highway apparatus and abutments. The Nassau County Correctional Center would
like to expand this service to include removal of graffiti on private property.
In a telephone conversation, you informed us that Nassau County is urging private property owners to
clean up graffiti on their properties. Such clean-up is the responsibility of the property owner. However,
many private property owners are frustrated because shortly after spending the time and money to clean
up their properties they soon become re-covered with graffiti. Therefore, to keep Nassau County free
from graffiti, and to prevent private property owners from repeatedly having to expend their time and
money to remove this graffiti, you would like to have the inmates of Nassau County Correctional
Facility clean, remove and paint over graffiti on private property.
You note that the Nassau County Community Services Agency utilizes probationers and other
individuals sentenced to perform community service to clean, remove and paint over graffiti on both
public and private property. However, as you further note, graffiti removal by probationers and
individuals sentenced to conditional discharge is specifically permitted by Penal Law § 65.10. Penal
Law § 65.10 provides, in pertinent part, as follows:
When imposing a sentence of probation or of conditional discharge, the court shall, as a condition of the
sentence, consider restitution or reparation and may, as a condition of the sentence, require that the
defendant:
...
(h) Perform services for a public or not-for-profit corporation, association, institution or agency,
including but not limited to services . . . in an appropriate community program for removal of graffiti
from public or private property, including any property damaged in the underlying offense . . .. Such

sentence may only be imposed upon conviction of a misdemeanor, violation, or class D or class E
felony, or a youthful offender finding replacing any such conviction, where the defendant has consented
to the amount and conditions of such service. Penal Law § 65.10(2)(h).
Therefore, the Nassau County Community Services Agency is specifically permitted by statute, upon
order of the court, to use probationers and individuals sentenced to conditional discharge to clean,
remove and paint over graffiti on both public and private property.
Unlike the Penal Law, the Correction Law does not provide for the use of inmate labor for private
purposes. Correction Law § 177 provides, in pertinent part, as follows:
The labor of inmates in local correctional facilities after the necessary labor for and manufacture of all
needed supplies for the same, shall be primarily devoted to the counties, respectively, in which said local
correctional facilities are located, and the towns, cities and villages therein, and to the manufacture of
supplies for the public institutions of the counties, or the political subdivisions thereof, and secondly to
the state and the public institutions thereof. Correction Law § 177(2).
Thus, inmate labor may only be used in relation to public property. This provision implements
constitutional restrictions which provide that "prisoners sentenced to the several state prisons,
penitentiaries, jails and reformatories in the state" shall not be "required or allowed to work, while under
sentence thereto, at any trade, industry or occupation, wherein or whereby his work, or other product or
profit of his work, shall be farmed out, contracted, given or sold to any person, firm, association or
corporation." NY Const, art 3, § 24. The purpose of this provision was to protect private industry from
competition from inmate labor. See, Revised Record of the Constitutional Convention of the State of
New York, August 25, 1894.
Accordingly, although inmate labor clearly may be used to supplement the public work force, including
assisting in the removal of graffiti from public property, Correction Law § 177 does not provide for the
use of inmate labor for private purposes, which would include the removal of graffiti from private
property. Because the removal of graffiti from private property would be for the benefit of the private
property owners, the use of inmate labor to remove such graffiti is not permitted under either Correction
Law § 177 or article 3, section 24 of the State Constitution.
We conclude that although Correction Law § 177 provides for the use of inmate labor for public
purposes, including the removal of graffiti from public property, it does not provide for the use of
inmate labor for private purposes, which includes the removal of graffiti from private property.
Additionally, article 3, section 24 of the State Constitution does not permit the employment of prisoners
for the benefit of any person, firm association or corporation. Accordingly, the Nassau County
Correctional Center may use inmate labor to clean, remove and paint over graffiti on public property,
but may not use inmate labor to clean, remove and paint over graffiti on private property.
The Attorney General renders formal opinions only to officers and departments of State government.
This perforce is an informal and unofficial expression of the views of this office.
Very truly yours,
YVONNE M. HOVE
Assistant Attorney General