This post is part of our symposium on universal basic income.
Criminal legal debt provides a revealing lens through which to examine universal basic income (UBI). It highlights a path to potential failure: fetishizing labor markets as the engine of economic inequality ignores how today’s criminal legal system carries forward racial capitalism’s techniques of targeted extraction. Yet recognizing this also opens a door to more robust visions of UBI that join together the powers of work refusal and debt refusal.
UBI’s radical appeal has been staked to its potential to enable in practice and convey in principle a refusal of the labor market. As Kathi Weeks explains in theorizing a “post-work imaginary,” this does not require an absence of work but rather its decentering as an organizing institutional and cultural principle. And UBI would simultaneously shift power relations within waged work (as well as between waged and unwaged workers in families & communities), the centerpiece of Erik Olin Wright’s embrace of UBI as “eroding capitalism” over time.
The work refusal analysis focuses on income. UBI would relieve the “work or starve” dilemma that enables labor exploitation. To do this, income must put food on the table. That places perhaps undue faith in consumer markets (as Lydia Nicholson points out). But furthermore, income can be forcibly removed before it can be used, through debt collection. This observation occasionally crops up with regard to taxation in analyses of UBI financing and tax-transfer integration. There, however, the significance (setting aside broader critiques of a financing frame, like that of Raúl Carrillo’s) involves how offsetting taxes on higher income people complicate the expressive and practical commitment to universality. Of greater concern is how UBI might be taxed back from the most marginalized, those for whom an independent income stream might be most empowering. This is where criminal legal debt fits in.
How Criminal Legal Debt Could Undermine UBI
Criminal imposition and enforcement of economic sanctions doubly amplifies the racial construction of economic inequality. It lies at the intersection between racialized, and particularly anti-Black, policing and punishment and also the vulnerability produced by racial structures operating within conventionally “economic” spaces of labor, housing, credit markets and so on. Accounting for this goes beyond defending formal universalism by including not only unauthorized immigrants but also currently or formerly incarcerated people. A UBI responsive to systematically racialized economic extraction must address not only historically-informed reparations but also ongoing predation.
Building on USDOJ’s Ferguson report, advocates in California have documented a vicious cycle of fines and fees exacerbated by racial profiling in traffic stops, racially concentrated inability to pay that triggers drivers’ license suspensions, then arrests for driving without a license after further racially targeted stops, and more debt and risk of incarceration. A multi-state survey of formerly incarcerated people and their families found an average of $13,607 in criminal legal debt, more than the entire annual value of presidential candidate Andrew Yang’s recent UBI proposal. And Alexes Harris’ pathbreaking research found comparable debt burdens–and pervasive inability to pay–among people with felony convictions in Washington State.
It would be ironic indeed if a UBI slipped quickly through the fingers of lower-income people of color and into the coffers of jurisdictions most aggressively criminalizing poverty. This would negate UBI’s ability to facilitate work refusal because UBI—devoured by debt—would no longer be available to meet basic needs without a wage (or connection to a wage-earner). Moreover, this negation’s radically unequal racial distribution would mock UBI’s pretensions to universalism. Substantive universality requires more than formal inclusion and nominally equal payments. It requires cash receipts that deliver equal capacity to refuse work.
There are concrete reasons to fear this grim outcome, given both the predominant frameworks for regulating criminal legal debt and the loopholes built into some prototypes for UBI. The legal and conceptual architecture for resisting criminal legal debt largely adopts an “ability-to-pay” framework that highlights the injustice of incarcerating (or otherwise punishing) people who are unable to pay. But this same approach authorizes arrest and incarceration of anyone who chooses to refuse, despite having the money to pay. Indeed, some critics of the “new debtors prisons” might be tempted to embrace UBI precisely because it enables payment: losing your basic income is better than jail.
As Theresa Zhen has argued, the ability-to-pay framework risks legitimizing the criminal legal system’s deployment as a tool of racialized economic extraction. UBI would provide a whopper of racially stratified fiscal substitution, with state and local criminal legal systems able to (selectively) capture national basic income payments. This also would blunt one of criminal debt abolitionists’ pragmatic arguments: that these onerous debts are rarely collectible. Contrary both to UBI’s universalism and work refusal goals, this would dynamically entrench racial labor stratification by creating racially differentiated capacity to refuse work. Indeed, we can already glimpse that prospect in today’s coercive systems of “get to work or go to jail” often styled as debt enforcement. And the differentially precarious economic circumstances of people with criminal records already helps concentrate them in the worst jobs.
In complementary fashion, precedent exists for diverting basic income to satisfy criminal legal debt. Alaska’s Permanent Fund Dividend (APFD) program often is touted as a UBI prototype. But its garnishment protections are substantially weaker than those currently applicable to wage garnishment. The vast majority (80%) of an individual’s dividend can be seized to satisfy any creditor’s judgment. The remainder is protected against most ordinary civil debts but explicitly exposed to certain collections–including of criminal legal debt. Another related, though less sweeping, example is the deduction of student loan and child support arrears from recent pandemic stimulus checks.
Designing UBI to Facilitate Debt Refusal
There is an alternative. The legal architecture of UBI could be designed not merely to neutralize the threat from criminal legal debt but to incorporate a broader politics and pragmatics of debt refusal. This would both complement and advance UBI’s more familiar project of work refusal.
The grim outcome foreseen above assumes that debtors would be forced to hand over their UBI. What if they could refuse? Were they able to retain control over at least their basic income, UBI would retain its (admittedly imperfect and incomplete) capacity to meet basic needs and thereby enable work refusal (or holding out for better work), notwithstanding formal debt claims.
The ability-to-pay trap is legally contingent. Fully removing it would require going beyond challenging the specific collection mechanism of debtors prisons. It would need to reach into the world of liens, garnishment, and bankruptcy. It would necessitate affirmatively walling UBI off from creditors. This entails rejecting mechanisms like the APFD’s that would withhold UBI payments and route them straight to creditors.
Such protective mechanisms have precedent in the obscure inner workings of federal direct payments. Income from the refundable Earned Income Tax Credit is excluded from means-testing (ability-to-pay) calculations for food stamps (SNAP) and many other programs. Social Security payments generally are immune from garnishment and other techniques to collect ordinary civil debts and judgments, even after deposit in a bank account. As with most federal tax refunds and other payments, however, there are exceptions for child support and federal student loan arrears. Even those, however, are excluded from garnishment of Supplemental Security Income (SSI). Each recent round of enacted and proposed pandemic relief payments has seen different rules on similar exceptions to the exception.
These variations highlight how some issues raised via criminal legal debt apply more generally, consistent with conceptualizing criminal legal debt within a broader field of financial predation. But the robust pattern of debtor protection exceptions for fines & fees and other government debts–recently highlighted and criticized by Abbye Atkinson in the bankruptcy context–points to special challenges. Intriguingly, these exceptions closely track some within Thirteenth Amendment jurisprudence. There, and setting aside the textual exception for direct punishment, courts have (questionably) permitted forced labor as a collection mechanism for debts deemed sufficiently public in character, including for child support.
Conceptualizing Debt Refusal Alongside Work Refusal
As the constitutional foundation for work refusal, the Thirteenth Amendment also provides positive resources for thinking about debt refusal and UBI. An important body of doctrine specifically protects the refusal to work, including to pay off a debt. This peonage jurisprudence bars criminal penalties (including fines & fees!) for failure to fulfill a legal obligation to work. But unlike the Eighth & Fourteenth Amendment principles underwriting ability-to-pay jurisprudence, Thirteenth Amendment doctrine eschews analyzing work refusal in terms of personal responsibility. The peonage laws struck down by the Court generally contained a “good cause” exception, but this did not save them: a worker must be able to simply refuse, without needing a reason. Of course, immunity from prosecution still does nothing to ease the work-or-starve bind, which is precisely where UBI comes in.
To meaningfully advance a project of work refusal, a UBI demand must incorporate a politics of debt refusal. UBI design already extends to basic income the Thirteenth Amendment’s (imperfect) protections for basic personal liberty: a UBI is unconditional, and specifically not conditioned on work. Why not likewise conceptualize paying debts as behavior? Access to UBI should not be conditioned on debt acquiescence any more than on work acquiescence.
UBI aspires to carve out a domain of freedom grounded in access to basic needs. For people to retain—and equally so—that control, UBI must be rendered impervious not only to demands for work but also to demands for payment, of criminal legal and other forms of debt. This feature, as well as the challenges underlying it, is not an obscure technical consideration. Rather, it goes to the core of UBI’s capacity to deliver on its radical promise. This, however, has been almost entirely overlooked in UBI analysis, apart from the occasional stray reference.
To be sure, even such a debt-proofed UBI would remain limited. Its most sophisticated advocates offer UBI not as a policy “solution,” but as part of a dynamic process that both helps set our sights on a radical horizon and forges tools with which to move toward it. Although UBI facilitates work refusal at the individual level, this also builds capacity for collective refusal through the labor strike, long articulated in Thirteenth Amendment terms. Similarly, a UBI that facilitates debt refusal could advance the burgeoning practice of collective debtor action. Joining these capacities may be essential to move beyond defending against predation and toward reshaping structures of power. Achieving that ambitious prospect will, perhaps most dauntingly, require addressing the criminal legal system’s capacity to demand work and payment. It will not do to don the blinders of separate spheres and look only to “the market” as the problem, thereby missing much of how racial capitalism operates today.
