While the story of mass incarceration will be familiar to blog readers, a concurrent trend in American criminal justice has received far less attention: the rise of criminal-legal predation. Since the 1980s, a complex public-private infrastructure has developed around extracting revenue from criminalized people, their loved ones, and their communities. In their new book, Legal Plunder: The Predatory Dimensions of Criminal Justice, Joe Soss and Joshua Page draw on a decade of historical and ethnographic research to illuminate the origins, operations, and implications of this system. In the following interview, Amna Akbar, Soss, and Page discuss the concept of criminal-legal predation, its relationship to mass policing and deportation, and the potential of anti-predation organizing.
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Amna Akbar: One of your book’s central contributions is the development of the concept of predation. As you note in the introduction, predation refers to a set of social relations and practices that are “structured by the dominant and subordinate positions that actors occupy relative to one another and by the terms that organize and regulate their transactions. Specifically, they (1) are based on a subordinated group’s subjugation and exclusion and (2) leverage the subordinated group’s vulnerabilities, needs, and aspirations to pursue targeted modes of intensive exploitation or expropriation.”
Can you begin by explaining why you focus on this concept, and what it adds to our understanding of criminal-legal governance?
Joe Soss: Much of the work in this field focuses on how criminalizing, policing, and punishing people excludes them from accessing benefits, jobs, and housing. But this only really addresses one side of the story. The frame of predation helps to reveal the other side: how the forms of exclusion generated by criminal-legal governance work to turn people into targets of intensive resource-extraction practices.
As an analogy, consider people who are denied standard banking services. Their exclusion contributes to social inequalities in a direct sense by restricting their access to other valuable opportunities, goods, and services. But it also contributes to social inequalities along a second track, by channeling them toward businesses such as payday lenders and pawn shops that offer substitute services on intensely exploitative terms. This second dynamic works through a process that we and others call predatory inclusion—a process in which exclusion creates the enabling conditions for inclusion into predatory relations and practices. In some cases, these forms of inclusion may even be seen as a good thing. After all, people are gaining access to things they value and were previously denied. But the inclusion is on terms that are deeply exploitative, and in some cases, expropriative.
In our book, we use predation as an analytic framework to explain how criminalization and policing serve as the basis for a wide range of extractive practices, such as fines and asset seizures, that disproportionately target race-class subjugated communities. These processes also function as the gateway to further predation by funneling people into courts, which have their own methods of stripping resources through fines and fees. Courts, in turn, distribute legally entangled people to other arenas of predation. In addition to prisons, which operate as especially intensive sites of extraction, most probation, parole, and reentry programs in the U.S. today defray costs by imposing “user” fees.
Most of these predatory operations, it’s important to note, are organized as public-private partnerships. Even so-called “public” prisons in the U.S. today are shot through with for-profit operations that allow corporate service providers to make very, very good money off mass incarceration—and usually generate substantial revenue streams for governments through commission payments. Since the 1980s, new practices that simultaneously generate public and private revenues have spread to every corner of criminal-legal governance. One consequence of this development is that some powerful interests that have not normally been seen as playing a noteworthy role in criminal-legal politics and governance—for example, private equity firms and large insurance companies—have become powerful and attentive actors in the field because there’s so much money being generated.
Akbar: Legal Plunder draws on a rich ethnographic study carried out at the street level of the bail-bond industry. That research, in turn, feeds your broader analysis of predation and its relationship to gender, race, and class. Can you talk about the intersectional approach you take in the book?
Joshua Page: When I started my ethnographic research, working as a bail bond agent, I assumed I would primarily be working with defendants, who are disproportionately low-income men of color. But I quickly saw that that wasn’t the case. They’re locked up, so how are they going to come up with the 10% premium for the bail? And along with the premium, bail bond companies require cosigners for each bond. When a defendant would contact the bail bond company, we were trained to ask immediately: what’s mom’s phone number? And if not mom’s, what’s grandma’s? The people coming in to pay the bail fees and sign contracts were overwhelmingly women, and generally women of color. For the bail bond industry to survive and profit, it has to generate revenue from the families and communities of accused individuals.
The bail company itself had strategies for targeting women to get them to take on these responsibilities. To explain how this works, we draw on Evelyn Nakano Glenn’s concept of the social organization of care. In short, based on an intuitive sense of gendered caring roles and responsibilities, bail bond agents assumed that the people who would care enough about defendants to bail them out, and feel obligated to do so, would be these individuals’ moms, girlfriends, grandmas, or aunts. And they were usually right. It was all strongly gendered.
This insight also provides a good example of the broader ways that the ethnography oriented our research and pointed us toward more general dynamics. The bail bond industry, we came to see, is far from the only arena where the primary target of predation is not so much the legally entangled individual as their significant others, and especially the women who are closest to them. The people who pay for prison phone calls and put money on incarcerated people’s books, for example, are also disproportionately low-income women of color. The defendant or incarcerated person serves in these contexts as a lure, if you will, that allows governments and their business partners to access resources held by their families and significant others. In this way, it becomes possible for predatory operations to incorporate large numbers of people who haven’t been accused of any crime.
Soss: Yes, and this dynamic points to a more general feature of how we develop the concept of predation as an analytic frame. In most studies of criminal-legal governance, legally entangled individuals—people who directly experience police actions, criminal accusations, convictions, periods of incarceration, and so on—stand at the center of analysis. The negative experiences and effects that their families, friends, and communities endure are often seen as “collateral consequences.”
In the predatory relations and practices that suffuse criminal-legal governance today, however, subjugated communities and their resources serve as the primary targets. Individuals who get caught up in the system function as anchor points for revenue-generating operations that work, and can only work, by reaching beyond the extremely limited assets these individuals possess and tapping into resources held in their communities. The moms, wives, and girlfriends who care-package and telecom companies relentlessly hound into making costly purchases for their incarcerated loved ones are not the incidental casualties of spillover effects. They are the primary targets of predatory projects that have become integral to criminal-legal institutions and operations throughout the U.S.
We didn’t begin our study with the concept of predation that we present in the book. It evolved over time as we tried to make sense of what we were learning about operations on the ground. And the more we learned, the more we came to see the real targets of predation as subjugated communities and workings of predation as inseparable from social-structural inequalities and dominant-subordinate relations. People in such communities sometimes experience predation as policed, accused, or convicted individuals and sometimes as family members, friends, and associates of such individuals. Ultimately, this is just one of many ways that one can distinguish varieties of predatory criminal-legal practices, any of which could be more important than the others depending on the question one is asking.
Akbar: What role do courts play in this regime of predation?
Page: Courts are central to what’s happening here, and it’s important to think of them not only as sites of predation but also as hubs connecting various other extractive sites. On the one hand, courts rely on the cops to do the ticketing and the arresting, to bring people into their operations, and to go after people who don’t pay their fees. But they also position people for the bail bond company when they set bail beyond people’s ability to pay; they send people to jails and prisons, where they are subjected to various forms of state-imposed fees and corporate profiteering; and they put people on probation and parole where they’re charged supervision fees.
We also argue that courts function as backstops for the enforcement of civil debt, which has exploded in recent decades with the broader financialization of the economy, in addition to being a site of predation themselves.
Soss: Part of the argument of the book is that, if we want to understand how courts (or police or prisons) actually work, then we have to pay attention to the new functions they’ve come to serve in this era of financialized extraction. For courts, along with a number of other criminal-legal institutions, revenue functions have become central to their operations. They’re not discrete activities, set apart from the rest; they’re woven through everything that they do. So, one of the arguments we make at the end of the book is that even if you’re not interested in predation per se, you’re just interested in how the law operates in the real world, you need to pay attention to how legal procedures and practices are braided together with revenue generation.
Akbar: At one point in the book, you write that “changes in penal practices relate to historical shifts in the organization of capitalism and social inequalities.” An ambition of the Law and Political Economy Project is to sharpen our thinking about the state under capitalism. Could you say more about the relationship among neoliberalism, financialization, and predation?
Page: The forms of predation we witness today are directly related to the squeeze on public finances, which is partially caused by the policy devolution and capping of property taxes that were characteristic of neoliberalism. More broadly, with the privatization of state services, people came to be seen as consumers of public services, and this was also true in the criminal-legal system. Rather than as people with rights, they’re seen as consumers that should pay for services: they should pay for their own incarceration, they should pay the fees to the courts, and so forth. This is a particular form of financialized predation.
The historical story we tell in the book is about continuity and change. Criminal-justice predation has been around since before the founding of the country. But until the 1980s, it was primarily focused on the extraction of labor (through slave patrols, chain gangs, the convict leasing systems, and the like), and what Joe and I try to document and explain is the shift from labor extraction to financialized predation. Labor extraction still exists, but it is dwarfed by financial forms that seize resources, charge fees, create debts, and pursue payments.
Soss: Part of our argument is that predatory projects emerge from and need to function within particular landscapes of political economy. Largely for this reason, they differ over time.
When it comes to the neoliberal era, it’s important to understand how the marketization of the state paved the way for privatization. It was precisely because the state was being asked to be run more like a business and generate returns on investment that certain financial practices took hold in public institutions. This then creates a model that allows the privatization to happen. Once the state decides to charge fees for a certain service, it soon comes to realize that corporate actors are often way better at doing so. More broadly, if you want to understand the predatory projects of any era, and how they are entwined with criminal-legal practices and institutions, you have to start with the defining features of the era’s political economy.
Akbar: Does criminalization come before predation or does predation precede criminalization?
Soss: In the book, we try to make it very clear that we are not arguing that mass incarceration and the saturation of policing in certain communities are products of revenue-centered goals or operations. The growth of policing and imprisonment is the first mover in many ways, and the explosion of financialized predatory practices comes along once that capacity is there. These changes in policing and incarceration generated new costs that had to be absorbed while simultaneously creating apparatuses that could be used to extract new streams of revenue.
We’re often asked the question: how do you get money from poor communities? Well, you have to do it at scale. The assets held by small numbers of people in a poor community are not going to get you very far. Even the financial crises of the 1970s happened before there was really enough capacity to generate serious revenue streams. But once the era of mass incarceration begins to take off and criminal-legal expenditures rise dramatically, that’s when corporate actors start to see that there’s money there to be made, and they start to work their way into the system. So, these things work together. There’s a back and forth, but to the extent that you can identify any first mover, it is the changes in the criminal-legal system.
Page: We draw on the work of Theda Skocpol and others who argue that in order to implement large-scale policies, you have to have administrative capacity, and the new forms of predation that emerged really depended first on developing the capacities associated with mass incarceration and mass policing.
Akbar: Are we seeing something similar today with the expansion of mass deportation?
Page: In order to have this enormous project, and to detain and deport hundreds of thousands of people, the Trump administration has to create capacity. They’re doing this through some of the same practices that Joe and I discuss in the book. They’re contracting with local counties and giving them money to house people. They’re contracting with Palantir to find people. They’re paying private prison companies to build detention centers. And so, we’re seeing a similar development in using these predatory techniques to try to build up the capacity for mass deportation.
Soss: As you try to build the capacity to carry out any large-scale state project, one way to do so is through predatory practices, which allow everybody to get a taste of the proceeds. You can make mass deportation and detention lucrative for a county, or for another country.
Moreover, building up ICE and immigrant detention centers means you’re now building up, at the federal level, the kinds of capacities that states and localities used to pursue financialized predatory projects. We’re potentially seeing an institutional shift that could lay the groundwork for a significant expansion in criminal-legal predation.
Akbar: Another way to see the exploitation and violence by all these various actors is as forms of counterinsurgency against ordinary and working-class people that must be understood separately and together. They are fundamentally anti-democratic.
Soss: Yes, there’s a political register to all of this. We talk about the concept of indentured citizens in the book, and the vulnerabilities they have to the loss of public spaces due to policing that always carries the threat of being fined and being pulled into these situations, which imperils shared public space and erodes civic life. This is happening with the ICE surges, too. In some cases, they’ve used warrants for outstanding criminal-legal debts as a basis for going into apartment buildings or businesses and then rounding up whoever is inside.
In fact, in some places, it’s considered a form of moral turpitude to have not paid off your criminal-legal debt. If you have criminal-legal debts, whenever you go out in public, you carry the risk that you could be jailed, just for your debts, at any time. Just walking down the street can provoke anxiety; protesting is even more frightening. This has major political ramifications. It can create a kind of cowed public that is afraid to engage in political actions or that can be accused of doing something illegal when they thought they were just doing something that was civic.
Page: One of the other political consequences, particularly of the privatization, is the lack of democratic accountability. When you transfer these functions, whether it be pretrial supervision or imprisonment, to a private company, these companies don’t have to provide public information like public agencies are supposed to. In the criminal-legal system, privatization makes it even harder to get information and to hold anybody accountable.
Akbar: At the end of the book, you discuss campaigns against predation, the barriers they’ve faced, their wins, and lessons for going forward. Can you share your reflections on those campaigns, and what your analysis of predation might suggest in terms of opportunities to undermine, challenge, or transform the social relations they produce and draw from?
Page: We worked on this book for about 10 years, and, as you can imagine, a lot of the work was very depressing, very infuriating. But having the opportunity to really delve into the political struggles was a bright spot of the research. There are major barriers and obstacles to creating change, so the fact that there actually are victories was very inspirational.
I found anti-predation networks really impressive. One of the difficulties with addressing predation is that it occurs at various scales and levels of government, from cities to counties to states to the federal government, and the practices vary from place to place. It’s a really fragmented field, which makes it easier for those who are defending it. To combat this, anti-predation campaigns have created broad networks that include people who have experiences in the system, researchers, activists, and insiders in government. They fight against particular practices and work across different sites of predation, combining resources and knowledge about how to fight at different levels.
Soss: As we look at the campaigns that have achieved big wins, a lot of their success has depended on developing what social movement scholars call injustice frames. The idea that “we,” as a community, are being stripped of what little we have by government authorities and corporations—under the banner of law and justice, no less—can be a very powerful basis for political organizing and collective action.
I think the idea and, perhaps especially, the feeling of being exploited plays an important role here. For example, a lot of people these days who make endless payments on debts—medical debts, student debts, credit card debts, and all the rest—have a deep, visceral sense that they are being exploited. In communities that have been subjected to intense practices of legal plunder for decades, I think analogous feelings are pretty widespread. When people talk about police and courts and jails, it usually doesn’t take long for them to start talking about money. They’re frustrated, outraged, and just flat-out tired of feeling like they and their community are being exploited by greedy corporations and government authorities. It doesn’t take a big leap of imagination to see how these sorts of feelings and beliefs might serve as a powerful basis for connecting personal grievances to fundamental questions of political economy and demands for transformative social change.
