This post is part of a series highlighting some of our favorite entries from the Blog’s archives. Read the rest of the posts here.
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Criminal law, as taught and studied in law schools, is conventionally understood apart from legal fields that address the economy. Conversely, conventional understandings of the economy tend to overlook the involvement of outright coercion and violence in the production of goods and services. Here at the LPE Blog, however, we begin from the recognition that criminal law and political economy are deeply interwoven. Criminal fines fill public coffers. Municipal insurance schemes diminish democratic control over police. Prison construction reorganizes local economies.
Taken together, the following posts highlight the complex connections between punishment, political economy, and social inequality. They also demonstrate how scholars and lawyers are imagining alternatives and novel strategies for reforming, or even abolishing, the carceral state.
Criminal Justice and Slow Violence in Keilee Fant v. City of Ferguson, Missouri – Angela P. Harris
In her opening post of a series on teaching Law and Political Economy through Keilee Fant v. City of Ferguson, Angela Harris focuses on the “slow violence” of the criminal justice system. The complaint, which describes an African American single mother’s significant jail time for failure to pay traffic tickets, “effectively conveys the absurd, grinding details of the gauntlet faced by Fant and other poor, mostly black people while driving through the northern St. Louis suburbs.” While “the many [] black men and women killed by the police represent the ‘fast,’ spectacular form of racism, Keilee Fant’s infuriating trips from jail to jail, accompanied at every step by little humiliations, represent the slow form.” Both forms of violence, however, mobilize state power against black and brown people in the name of security.
From Work in Prison to Carcerality at Work – Noah Zatz
In this post, the conclusion of a series on Captive Labor, Noah Zatz poses the following question: “How might organized labor be engaged in ending mass incarceration?” The standard approach is to emphasize how carceral labor is exploited as a substitute for “free labor,” undermining organized labor. Yet Zatz pursues a different path, highlighting how the carceral state “reaches into the heart of so-called ‘free’ labor markets.” As Zatz observes, a vast swath of ostensibly free labor, especially among low-wage workers, occurs under immediate threat of state violence. Recognizing this shared threat, anti-carceral unionism emerges not from broad concerns over economic substitution but instead from the practical demands of workplace organizing. (Other great posts in this series include Erin Hatton’s fascinating Labor and the Carceral State and Ivan Kilgore’s moving personal reflections in Not Worker, But Chattel.)
What Comes After Money Bail? An LPE Perspective on Pretrial Detention – Jocelyn Simonson
Jocelyn Simonson’s introduction to a series of posts on money bail powerfully distills the underlying political economy of the policy. Money bail, Simonson argues, exemplifies the kind of slow violence Harris describes above, which “extracts wealth from segregated communities of color over generations only to reveal itself later through incarceration for failure to pay fines, fees or bail, a violence that must be analyzed as a problem at the intersection of race, class, and geography.” Simonson then emphasizes two themes from the wider symposium: that money bail must be understood as a phenomenon within larger systems of structural inequality and that questions about what comes after money bail cannot be left up to technocratic enterprise.
Who Should Pay for Police Misconduct? Joanna Schwartz
During the summer of 2020, Joanna Schwartz examined a pressing question: who should pay for police misconduct? Her post offers a helpful primer on the various means by which individual officers are financially insulated from the consequences of their actions and, more broadly, the way that the current system fails to deter misconduct. Schwartz also explains why personal liability, the most commonly proposed alternative, neither advances lawsuits’ compensation nor deterrence goals. Instead, she makes a thoughtful and perhaps surprising case for continued officer indemnification.
Insurance Risk and Democratic Police Reform – Anthony O’Rourke, Guyora Binder, Rick Su
Addressing a similar question from a different angle, Anthony O’Rourke, Guyora Binder, and Rick Su explain how municipal insurance often diminishes local democratic control over policing. In this post, part of a series on the law and political economy of insurance, the authors observe that while insurers may encourage incremental police reform (by incentivizing cities to adopt policies that reduce misconduct), they are likely to block radical transformations of police governance. From the perspective of insurers, who require some degree of predictable risk in order to price insurance products profitably, significant reforms of police agencies generate uncertainty and thus threaten the core business model of liability insurance.
The Role of Coercion in the Neoliberal Economy, Zohra Ahmed
In our symposium on Melinda Cooper’s Counterrevolution, Zohra Ahmed connects the dots between mass criminalization and Cooper’s story of neoliberal public finance. As states increasingly adopted constitutional tax and spending limits, they turned to “arrests for misdemeanor and non-criminal offenses to generate fees and fines in order to replenish public coffers.” Ahmed argues that appreciating that criminal fines and fees function as a substitute for progressive taxation allows us to see some of the problems with current movement efforts to challenge these practices. For instance, some advocates have demanded that courts should be required to meaningfully consider the defendant’s ability to pay before imposing a fine. Such approaches ignore not only the functional role that such fines play within local public finance, but also the reason that states levy fines and fees in the first place—they are designed to repress those who have the least.
Building a World Without Family Policing – Dorothy Roberts
In a post introducing a symposium on her Torn Apart: How the Child Welfare System Destroys Black Families—and How Abolition Can Build a Safer World and Wendy Bach’s Prosecuting Poverty, Criminalizing Care, Dorothy Roberts makes a powerful argument for abolishing family policing. As Roberts details, the child welfare system, despite its benevolent veneer, is a particularly insidious component of the carceral regime. It serves to subjugate the most politically marginalized groups and to maintain an unjust political structure in the name of saving children. Given this purpose, she argues, the system is relatively impervious to reform efforts. After years of participating in reform efforts to improve foster care, address its racial disparities, and reduce its population, Roberts arrived at the conclusion “that the family-policing system can’t be fixed. It must be abolished.”
The Carceral Conjuncture in Central Appalachia – Judah Schept
As part of our series on the LPE of Rural America, Judah Schept reflects on jail and prison expansion in Eastern Kentucky. Schept analyzes how, in the wake of the decline in coal mining production and employment, prison construction and investment have come to serve as a putative solution to the region’s economic troubles. Even as evidence has shown how prisons can impede further development, prisons nevertheless serve as the cornerstone of county applications for grant funding for various infrastructure projects, where funding is contingent upon evidence of some kind of economic development project. He also explains how a coalition of organizers, landowners, national environmental activists, attorneys, and people in prison has worked to fight off the construction of a new federal prison in the region.
Defendants, United, Could Strike the State Blindsided – Andrew Manuel Crespo
In an eye-opening post that combines the insights of racial justice and labor movements, Andrew Crespo argues that the American penal system is astonishingly vulnerable to the threat of defendant collective action. The reason is simple: the system is massively overleveraged. Major city court systems, which only have the capacity to bring to trial about 3 percent of the cases they handle, are dependent on plea bargaining to remain minimally functional. If even a tiny percentage of defendants banded together and refused to plead guilty, he argues, they would bring the administration of criminal justice to a grinding halt. After sketching this alluring idea, Crespo considers what such a plea strike might look like in practice and whether such a tactic should be attempted.
A Horizon Beyond Legalism: On Non-Reformist Reforms – Amna Akbar
While the previous posts in this collection focus on an LPE approach to criminal law, Amna Akbar’s reflections on non-reformist reforms consider what legal scholars can learn from activists in the criminal law space. In her post, Akbar describes her own struggles with the expectation of a prescriptive Part IV in legal scholarship, where scholars are expected to propose solutions to the problems they document in the preceding three parts. Her instinctive refusal to provide such solutions, she would come to realize, was grounded in a deeper skepticism of technocratic policy advice. Instead, Akbar suggests that scholars of law should look to social movements, many of whom are embracing “non-reformist reforms” that seek to redistribute power and reconstitute who governs. This concept can help unearth more insurgent ways of relating to the law, and help legal scholars “approach current political and economic crises head on, attuned to the contradictions of the law, and in service of popular power.”
