This post is part of a symposium highlighting the second issue of the Journal of Law and Political Economy. All of our posts highlighting releases of JLPE issue releases are here.
“Going to the restitution center’s better than going to prison, I would think.” That’s how one judge justified a Mississippi program that forces people to work for private employers—from McDonald’s restaurants to meatpacking plants—to earn money earmarked toward their criminal legal debts. The predominantly Black workers are threatened with imprisonment if they violate the rules of the residential restitution center—operated by Mississippi’s Department of Corrections (MDOC)—in which they are compelled to live until the debts are paid. Such violations include “refusing to work,” “being terminated from employment,” and “encouraging others to refuse to work, or participating in a work stoppage.” MDOC celebrates this arrangement as “provid[ing] an alternative to incarceration.”
Mississippi’s restitution centers exemplify how racialized mass incarceration enables new forms of economic exploitation that simultaneously operate outside conventional labor protections while integrating workers into conventional markets. In other work, I’ve analyzed these “get to work or go to jail” mechanisms in detail. In this Journal of Law & Political Economy article, I turn to how institutional design and policy discourse align to legitimate such exploitation. They do so by normalizing incarceration as the baseline experience against which labor practices are judged.
This account runs contrary to dominant understandings of social policy that place markets at the center of the economy and civil regulation at its margins, trying to tame market processes. Like Legal Realists before, today’s Law and Political Economy movement highlights how that framework takes for granted the legally constructed system of private property and markets that constitute a libertarian “baseline” against which subsequent welfare state interventions are judged. That baseline legitimates market outcomes as the product of individual choice and obscures legal construction of the choice set. Given the options to work or starve, most choose work as better than hunger. The traditional welfare state mitigates that dilemma with a public benefits “safety net” and protective labor regulation.
Even in critical accounts of economic subordination, however, the criminal legal system operates almost entirely offstage. The object of scrutiny remains “the economy” centered on “the market” and the primarily “private” law that constitutes it, largely apart from a separate sphere of criminal law. But the threat of precarious work does not come exclusively from marketization swamping a shrinking welfare and regulatory state. It comes as well from a metastasizing and thoroughly racialized carceral state, one that simultaneously speaks the language of public violence and sings in the liberal key of choice. Vice versa, critical accounts of the criminal legal system typically focus on how it produces economic exclusion, not incorporation on subordinated terms.
Restitution centers echo the classic “work or starve” choice set with another dilemma: “work or jail.” The law demands what might ordinarily be denoted “market” work and also portrays work as a price one chooses to pay, preferring it to the alternative. A variety of legal and policy actors specifically invoke the “work or jail” choice to legitimize the resulting labor practices and, in particular, to justify working conditions that would otherwise violate conventional labor standards. Practices rejected by established regulation of “work or starve” dilemmas can be rehabilitated by “work or jail.” Four examples illustrate this pattern.
Work Mandates and Child Support
First, consider work mandates targeting low-income parents in arrears on child support. These have emerged alongside the broader pushback against incarceration sanctions for child support nonpayment, one example of “modern debtors’ prisons.” Mandate proponents cast them as a progressive policy option because they are better than jail. In a memorandum to state child support programs entitled “Alternatives to Incarceration,” the Obama Administration’s federal child support agency highlighted “jobs not jail” programs. It endorsed work mandates under threat of incarceration as “a better alternative to ordering jail time.” A subsequent regulatory proposal specifically contrasted the inappropriateness (and constitutional infirmity) of incarceration for nonpayment with acceptable incarceration for nonwork, or nonparticipation in work programs. The latter was unobjectionable because it preserved choice: “the obligor has the present ability to do what is ordered of him or her.” The proposal embraced the resulting pressure into low-road jobs and rejected efforts to expand access to better work.
Criminal Legal Debt and “Community Service”
Enabling resistance to such downward pressure is one function of the Thirteenth Amendment right to quit, but the second example highlights how that right has itself been undermined through “better than jail” reasoning. The late 1960s and 1970s saw a successful constitutional litigation campaign against incarceration for nonpayment of criminal legal debt, incarceration that often involved “working off” the debt through prison labor. States responded by reconfiguring incarceration as a threat used to enforce work mandates against debtors who were not (yet) incarcerated. The Mississippi restitution centers represent a particularly extreme example, but much more common is the institution of court-ordered “community service” to work off criminal legal debt. However, a series of court decisions culminating in one from the New Hampshire Supreme Court held that the Thirteenth Amendment forbade threatening someone with incarceration for failing to work off a debt that they had no financial means to pay; the Amendment’s penal exception did not apply when the work mandate was a collection mechanism, not a punishment.
The same 1981 New Hampshire opinion, however, provided a legal roadmap to resurrecting court-ordered community service. Rather than directly mandating it, the legislature could, instead, “require a physically fit indigent defendant who is financially unable to reimburse the government creditor for the expense of counsel to satisfy his debt by performing uncompensated work for the government as a condition of probation.” This seemingly formalistic distinction mattered because “[a] person convicted of a crime is not constitutionally entitled to probation” when the statute authorizes a jail sentence. Accordingly, the court reasoned there would be no coerced labor when the defendant had a nonwork alternative—serving an unsuspended term of incarceration—that they had no constitutional right to avoid. Their criminal conviction—not itself premised on nonwork—already exposed them to that carceral outcome. Rather than a sanction for violating an order to work, incarceration is merely the original sentence imposed for the underlying offense. But, lucky defendants, they get the opportunity to choose to instead perform uncompensated labor on probation. Making that choice affirms that this labor is better than jail, so what basis have they to complain? Having been chosen, the labor is constitutionally sanctified as voluntary.
Work as a Criminal Sentence
Third, court-ordered community service also arises as an integral part of a sentence, not just as a response to nonpayment. Here, the work/jail tradeoff arises at the front end, when a jail sentence might otherwise be imposed; this again positions community service as an “alternative to incarceration.” One such program in New York City drew a lawsuit from participants challenging its failure to pay them for their work. The district court in Doyle v. City of New York rejected the Fair Labor Standards Act (FLSA) minimum wage claims on the ground that work in question was not part of an employment relationship. It deemed community service to be noneconomic in nature because, rather than being motivated by “monetary compensation,” it offered an opportunity to “avoid the risks and anxieties associated with further prosecution and the ‘criminal stigma’ that attaches to convictions.” In other words, it was better than jail.
A similar logic animates another recent decision from liberal New York, one involving participation in a residential drug rehab program as a condition of diversion from criminal punisment. The program consisted almost exclusively of full-time uncompensated work—processing garbage, relaying messages, packing deliveries—that sustained the rehab center’s internal operations. In Vaughn v. Phoenix House, the court again rejected a FLSA minimum wage claim for lack of an employment relationship. Despite acknowledging how the rehab program benefitted economically, the court deemed the worker the “primary beneficiary” of the relationship, and therefore not an employee. “[M]ost importantly,” the worker was “given the opportunity to avoid facing his criminal charges and to stay out of prison.”
Social Policy in the Shadow of Incarceration
These three examples involve legally institutionalized tradeoffs between work and incarceration. Similar functional tradeoffs, real or imagined, also animate public policy analysis. Better-than-jail rationales pervades treatments of “reentry” after incarceration and overcoming the “barriers to employment” facing people with criminal records. A central idea is that employment can prevent future criminal legal involvement. Here, nonwork leads to jail not via violation of a formal mandate but through indirect processes mediated by income, social integration, and so on.
A recent episode fitting this pattern was Los Angeles’ contentious decision to create a carve-out from its pathbreaking $15 per hour local minimum wage. The provision excludes workers during their first eighteen months in a “transitional job” “for the hardest to employ in the City.” A significant strand of testimony before the LA City Council mobilized the idea of “second chances.” These arguments framed transitional employment primarily as enabling workers to avoid returning to prison, or worse. For instance, Alex Lopez, a high-ranking staff member at the employment program LA Conservation Corps, and a Corps participant decades earlier, testified that “if this opportunity was not given to me I wouldn’t be standing here today. I’d be in prison, or six feet under.” Chris Vijoco from Homeboy Industries likewise testified, “If it [the minimum wage] affects us and I lose my job, you know, I hate to say it but I, I’m not gonna sugarcoat it—it can be devastating for somebody like me. And I don’t want to go resort back to crimes, I don’t wanna go back to prison …. So please exempt us.”
A “better than jail” framework thus threatens to selectively displace conventional means of mobilizing, and protecting, labor, thereby facilitating new forms of racial stratification at once economic in character and obscured as such. Moreover, framed as a choice constructed within the sphere of criminal justice policy, this threat often arrives cloaked in the progressive mantra of “alternatives to incarceration.” By normalizing incarceration as the baseline, today’s carceral state enables racialized labor subordination to be presented as liberation.