CAN PRISONERS OWN CRYPTO?
First-Ever NFTs of Prison Art Raise a Bunch of Crazy-Ass Questions
by Nate Fish
Lemme Find Out
We’ve always heard prisoners can’t profit off their work. But we also know they DO get paid, and paid poorly, for their labor. So how does that make sense? What can and can’t prisoners get paid for? If they can’t receive dollars, can they own crypto? I had no idea, but I was going to find out by selling NFTs from incarcerated artists.
“As the most privileged members of our society plan their first post-covid vacation all expenses paid by crypto profits, what are the implications for the least privileged?”
The 13th
According to the 13th amendment,“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.” The law famously freed slaves and simultaneously created a new kind of slavery, prison labor, now a multi-billion dollar industry. We know, because of the 13th amendment, prisoners don’t receive proper pay for their labor, but can they have crypto accounts? — Build financial portfolios? — Credit? — Should they be allowed to, and should they choose to? As the most privileged members of our society plan their first post-covid vacation all expenses paid by crypto profits, what are the implications for the least privileged? — Can they get some too? — Or no? How far does the 13th amendment go?
“For the past five years I’ve been publishing the art and writing of incarcerated people... Truth is, we’ve never made much money, and by not much I mean no money, and by no money I mean I’ve lost money.”
Can I Even Do This?
I am not a constitutional lawyer — not even close. I am an artist, and for the past five years I’ve been publishing the art and writing of incarcerated people. For the books, I have the right to “…publish and sell the work in print and online.” After recouping the money I spend editing, designing, and printing the books, I donate 40% of profits back to the organizations we work with, orgs like Words Uncaged and the Justice Arts Coalition who administer arts programs in prisons and have large archives of prison art. Easy enough. It’s generous, I think. Truth is, we’ve never made much money, and by not much I mean no money, and by no money I mean I’ve lost money. Maybe what I possess in good intention I lack in marketing savvy. Or maybe the questions I am asking are the wrong ones. I am wondering if technically prisoners can access financial institutions from behind bars. Maybe I should be asking, considering our sales, does anyone give a shit? Does anyone care about prison or prisoners or what they teach us about ourselves? In any case, my newest scheme to scrape together enough money to publish our next book was to sell NFTs of the letters and drawings and photos and interviews I already possess. Could I use the same agreement we used for the books? Could I even do this? Can prisoners own crypto? — Or, more accurately, can I own it for them? I went on a journey to find out.
Son of Sam
Turns out, in addition to the 13th amendment, there is another well-known, relevant law, the Son of Sam Law. This is the law that specifically says prisoners cannot profit from the publicity of their crimes, and even more specifically, in book publishing deals. But a quick Google search also shows, “Yes, inmates can write books in prison. Inmates can also publish books and profit from those books in prison as long as they follow the rules of the institution and as long as the books are not related to the crime for which they are serving time.” This is consistent with my experience. Different prisons have different rules. And the work we publish is not about crime. It’s mostly about the opposite of crime, healing. So far, in the clear.
“…crypto isn’t exactly traditional capitalism. It’s sort of anti-capitalism, a way to take power from the institution and give it to the individual.”
Putting The “I” In Capitalism
After a little research, the first thing I had to do, of course, was buy some crypto. I am generally conflicted about whether or not to get into stocks and crypto. I see friends making money, but I am also publicly critical of capitalism. Earlier this year, I published a book titled, “You’re A Racist: Thoughts on Race in America’’, about capitalism and the other isms it leads to, so how can I justify opting in? But crypto isn’t exactly traditional capitalism. It’s sort of anti-capitalism, a way to take power from the institution and give it to the individual. And I wasn’t totally self-interested (though, to be honest, I wasn’t totally not self-interested either). I was representing those who cannot represent themselves, so, in my own estimation, my ethical slate was clean[ish], so I bought a couple hundred bucks of Ethereum, the currency of NFTs, and signed up for Open Sea, a platform where you can buy and sell them. First, I uploaded some of my own paintings to learn how to use Open Sea. I created a five-day auction for “New York, New York” starting at .5 Ethereum (roughly $1,700 at the time). Next, I posted “Dollar Dollar Bill Y’all” for the wapping sum of 1 full Ethereum coin. Neither sold, but at least I understood how to mint NFTs and put them on the market. After Open Sea’s “gas fees”, I was down to half what I originally put in. Was everyone going to make money but me? Was my track record as a bad capitalist with good karma going to continue forever?
“… an unchartered territory in an unchartered territory.”
The Experts
I talked to my friend Ray who runs Words Uncaged. He said we can’t pay the guys while they’re still in prison, but we can when they get out, so we came up with the idea of selling the work now, and letting it sit until they’re released, then cash out the amount of the sale and give it to them or maybe to Words Uncaged. So, while the guys sit in prison, the money sits in my crypto wallet. I liked the balance of the concept, and it didn’t require doing anything more than waiting to see what happens. But we still weren’t sure if it was legal. The good news was, Ray, after talking to the guys, gave me permission to sell the work. We were on our way to becoming the first, and only, sellers of the fine art and writing of incarcerated people as NFTs, an unchartered territory in an unchartered territory. Next, I called Wendy from the Justice Arts Coalition. They’re sort of the leaders in the prison art space. Wendy simply didn’t know. She had been trying to get answers too. Could they sell the work of the many incarcerated artists they work with as NFTs and give them or their families the money? She suggested calling a lawyer. Instead, I called more friends. Bad idea.
“According to people who knew more than me, I was selling the wrong thing, the wrong way, and should not profit on the sale.”
My Friends Are Bad People
I called Max and Dave, in that order. Max is a long-time art world insider, most recently the chief-curator for Red Bull Arts. He has a way of making you feel bad about what you were ignorantly excited about five minutes ago. It’s not his fault. He knows too much. What was new to me had already become passe to Max. He said NFTs should typically be native digital assets, digital creations, not just photos of existing paintings, and sent me a two-and-a-half hour podcast about the dangers of the increasingly digitized world we are moving into and who is shaping that world, a troublingly small demographic sliver of mostly white men between twenty-five and forty with nihilistic tendencies. He also, like everyone, got into ethics and money. “Sixty percent is a lot, Dude,” he said. “It’s like the most a gallery would ever take, and the point of NFTs is to eliminate the middleman.”
My next call was Dave. Dave is a beast on Instagram, and he’s sold a few NFTs. In his own admission, he was embarrassingly deep in the NFT rabbit hole, spending the last few weeks disappearing into the depths of the digital abyss. “This is awesome. I love it,” he said, “But if you make even a penny on this thing, you will be a fucking pariah in the NFT world. And you can’t hold the money for them. You have to open the prisoners their own crypto wallets. That’s the whole point of NFTs, ownership,” echoing what Max said. “It’s all about sovereignty.” So according to people who know more than me, I was selling the wrong thing, the wrong way, and should not profit on the sale. I asked Dave if it would be ethical to simply sell an NFT in the exact amount of the costs of our next book, not to make money, but to keep publishing the work. Suddenly, that was the new plan. “Yes. That might work,” he said. “But you need receipts,” his voice fading. “Look. I gotta go. Let’s talk again tomorrow,” and he was gone, back into the rabbit hole.
So… Can They?
The answer to our original question, can prisoners own crypto, is… I think so. From everything I have read and everyone I’ve talked to, it seems there is nothing illegal about it. It actually seems like a good way to give them financial autonomy and opportunity when they re-enter society. There are more considerations, of course, like, should ALL prisoners own crypto, to which the answer is, probably not. It should be a carefully considered privilege. Also, despite having stumbled into publishing the work of incarcerated artists and developing a true interest in prison reform, I am clearly not the right person to do this. I am not qualified or interested in starting a crypto program for prisoners (I can barely do it for myself). I am just trying to keep publishing books. So, with that in mind, it was time to finally post an NFT of prison art and see what happened. Would it sell? Would it, like other projects, go unnoticed? Would the feds come knocking?
Lux Mundi
One of the privileges of publishing books is deciding what goes in them, shaping them. It was not any different in this case. Maybe my payment for the years of working on this material was getting to select which images will forever stand in NFT history as the first pieces of prison art on the blockchain, bright, shining asterisks in a black hole of comparatively mundane transactions. I chose “Lincoln”, by Cory Sullivan, “Dear Stephen”, by Juan Mejia, and “Lux Mundi”, by Nicholas DiMaggio. All three men are or were in Calipatria State Prison in Southern California and were three primary contributors to our latest book, 128-G. They are my favorite images from the book. I don’t know why I like them so much. Maybe it’s the face tattoos on historic figures — Christ with piercings. Maybe it’s their expressions, Lincoln judging, Hawking pondering, Christ forgiving. In any case, here you are, World, the first-ever NFTs from incarcerated artists. Do with them, and with me, what you may. The only question that remains is the only question that matters…
Does anyone give a shit?
If there are any lawyers or experts with information, please email me at thebrickofgold@gmail.com.
