This post concludes a symposium on Melinda Cooper’s Counterrevolution: Extravagance and Austerity in Public Finance. Read the rest of the symposium here.
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In Melinda Cooper’s narrative of extravagance and austerity in public finance, one of the most powerful organizing forces on austerity-side of the ledger were the taxpayers who rebelled against the U.S. government’s rather modest efforts at redistribution in the 1960s and 1970s. From Sacramento to Washington D.C., conservative strategists exploited white anxieties about economic uncertainty and white hostilities to demographic shifts in America’s cities to push through a series of popular referenda that fundamentally altered the state’s power to tax.
They re-drew jurisdictional boundaries. They shrunk the geographic reach of income transfers to concentrate wealth spatially, quite literally sinking those outside the gates into poverty traps. And perhaps most importantly, they put in place constitutional tax and spending limits. As Cooper notes, by the early 2000s, twenty-seven states had adopted such constraints, with one in eight municipalities subject to some kind of constitutional or statutory limitation on its ability to spend. And while these limits have done little to curtail the total amount of public spending, they have significantly shifted how public money is raised, along with how it is allocated. In this brief post, I reflect on the role that fines have come to play in financing the state, as well as on the broader relationship between mass criminalization and a neoliberal political economy.
Invisible Taxation
Faced with dramatic cuts to their formal tax revenue, local governments increasingly turned to an alternative form of financing: the user fee. Though James Buchanan, the father of the intellectual movement behind the tax revolts, had himself long extolled the virtues of user fees—in which every taxpayer could “choose” how much they would be taxed—it was Gary Becker who devised a new way to fund the carceral state using such fees. Becker proposed that those who “use” the services of the criminal punishment system would fund it, just like you pay a toll on the turnpike. Of course, this experiment turned the traditional funding scheme, in which those who benefit from the protection of the criminal law pay for it, on its head. No one voluntarily seeks arrest, detention, or punishment. Those criminalized were certainly not obtaining any benefit.
Nonetheless, criminal courts came to play a critical role in this new fiscal arrangement ushered in by the tax revolts: extracting revenue not just to cover its own costs, but to provide revenue for municipalities strapped for cash as their tax bases shrunk. The Ferguson police department became notorious for this. Ten years ago, the Department of Justice revealed the city’s pattern and practice of using arrests for misdemeanor and non-criminal offenses to generate fees and fines in order to replenish public coffers that had been emptied by the neoliberal attack on progressive taxation. The police department, prosecutors’ office, and courts focused their efforts on arresting, pursuing, and convicting Missourians for minor offenses, with little regard for procedural formalities, churning out orders to compel them to pay, under the auspices of punishment for their transgressions. These fines and fees, which were onerous on their own, often resulted in unpaid debt, triggering license suspensions, the accrual of additional fees, and the authorization of new arrest warrants, all in the name of collection.
As revenue collection goes, carceral fees and fines are highly inefficient ways of raising funds. Millions more are owed than will ever be collected. The state will spend more on law enforcement and court administration than it can hope to gather from its debtors. Seemingly, the revenue does not justify the significant costs. But Cooper helps clarify this puzzle. As she stresses throughout the book, not all money is the same. Extracting revenue from the rich encumbers capital formation, while extracting money from the poor guards against inflation. Regressive “confiscation,” as Cooper puts it, had virtually no political or economic cost according to the neoliberals.
Thinking of fines and fees raised in criminal court as a deliberately regressive tax allows us to see some of the problems with current efforts to challenge these practices. Predictably, some lawyers have thought that the way to solve the problem of fines and fees is to give defendants their day in court. Specifically, advocates have demanded that before a criminal judge imposes a fine, the court must meaningfully consider the defendants’ ability to pay before setting the fine amount. That is, advocates have demanded that fines and fees be proportionate to the individual’s income level. Currently, they argue, fees and fines are excessive relative to the people’s ability to pay. However, given the broader vision behind neoliberal public finance, that discrepancy is precisely the point. While it may be inefficient to extract revenue from those who are least able to pay, for Buchannan and his fellow travelers, it was too burdensome to displace those costs on the capital owning class. An individual hearing to calibrate the proportionality of a single fine cannot correct for the intended disproportionality of carceral debt. Thus, the demand for an “ability to pay” hearing ignores the reason states levy fines and fees—they are designed to repress those who have the least.
Abolitionist groups understand this too. Earlier this year, bail funds in Tucson, Minneapolis, and Nashville put out a manifesto to challenge carceral debt. Their document, Dismantling Carceral Debt, reveals a sincere attempt to find modes of resistance that eschew narrow-minded legalistic approaches that fail to grasp the relationship between mass criminalization and neoliberalism: “Most organizations and campaigns focused on carceral debt and resulting poverty have not made a commitment to building lasting, strong debtor power against neoliberal policies and systems.” They were initially inspired by the Debt Collective’s model of the debtor’s union—”the idea of connecting people who would refuse to pay their carceral debt seemed full of potential.” But as the authors realized, the carceral debt landscape is decentralized and byzantine, just as the criminal punishment system. There are so many targets—creditors, collectors, enforcers. Moreover, a political platform predicated on refusing to pay carceral debt can lead not only to accrued fines and fees, but new criminal charges, like contempt. Those constrains and risks have not, however, extinguished this group’s hopes to initiate their own kind tax revolt—harnessing their collective power to refuse the carceral state’s regressive and violent revenue collection.
Discipline and Profit
While Cooper’s analysis primarily focuses on the rise of criminal fines and fees as a form of revenue generation, her discussion of the evolution of Buchanan’s intellectual trajectory suggests a more fundamental relationship: that criminal punishment is a necessary correlate to a state that must enforce property rights against an ever-growing multitude.
Cooper describes Buchannan’s evolution from romantic libertarian who embraced the myth of self-regulating market to pragmatic conservative policymaker, who eventually came to understand coercion as a necessary instrument to enforce this hostile social order. If markets were expected to reproduce inequality and protect wealth for the few, while state policy was expected to localize income transfers within families and segregated communities, who would keep the aggrieved majority in check? There had to be public infrastructure to enforce this lopsided view of governance. Criminalization was a key part of their neoliberal growth model, neither an after-thought nor a dirty secret.
Cooper’s historical narrative intimates that the key architects of the neoliberal revolution may have understood the importance of public investment in carceral agencies to defend disinvestment in public goods. More work, however, still needs to be done to delineate their views of criminalization, and the benefits it conferred. Those details are missing in Cooper’s account, and there are distinct theories about how mass criminalization advances a neoliberal political economy and vice versa.
We can look at the forces that drive prison construction, like public finance and bond markets, and the growing preference for investments in carceral infrastructure, starting in the 1970s, as Ruth Wilson Gilmore narrates in her magisterial Golden Gulag. We can look at inflation rate policies that triggered massive spikes unemployment and rendered hundreds of thousands of workers surplus, and prime targets for prisons to absorb. We can look at the disinvestment in community infrastructure that yielded communal violence and drug trade, activities that the state aggressively punishes. We can look at the activities of banks guaranteeing mortgages to concentrate disadvantage to create ghettos that were subjected to hyper-surveillance. We can look at the degradation of agricultural land that compelled laid off farmers to take jobs in the prison industry. We can look at the so-called private philanthropic interests subsidizing police training facilities, and the companies that deliver essential services, like food and health care, inside jails and prisons. Finally, but no less importantly, we can look to the role that mass criminalization plays as a labor governance regime that facilitates exploitation.
These are just some of the reinforcing political and economic forces that have made criminalization profitable. It would be a mistake to give one primacy over others. Some of these economic forces drive criminalization, others are knock on effects, and still others have a more complicated relationship—parasitic forces that eventually become so powerful that they reinforce the social order. Cooper’s text encourages further inquiry into these dynamics, inviting students of the carceral state to connect the dots between the architects of neoliberalism, public finance, and mass criminalization.
