How the Criminal Justice System Preys on the Poor

How the Criminal Justice System Preys on the Poor

In our financialized era, policing, adjudication, and punishment have been reorganized as resource extraction operations.

(Daniel Schwen/Wikimedia Commons)

The U.S. criminal justice system is widely considered to be one of the most punitive in the world. According to the Sentencing Project, over the last forty years the U.S. prison population has increased by 500 percent, up to a total of approximately 1.5 million people by 2017. Since the 1990s, the rapid increase in the prison population has far outpaced the declining crime rate. Although people of color make up 27 percent of the U.S. population, they constitute 67 percent of those incarcerated. Joe Soss, professor of public policy and political science at the University of Minnesota, studies the social, political, and economic roots of criminal justice practices, exploring how they have been used to extract revenue in recent decades and, in the process, manage class, race, and gender inequalities. Soss is currently writing a book with Joshua Page, associate professor of sociology and law at the University of Minnesota, titled Preying on the Poor: Criminal Justice as Revenue Racket. Last fall, I sat down with Soss to discuss their ongoing research. The following is an edited transcript of our conversation, with some additional considerations in light of the coronavirus pandemic.

 

Rafael Khachaturian: People are becoming increasingly aware of the biased nature of the U.S. criminal justice system, but they are probably less aware of how criminal justice practices strip resources from poor communities in ways that contribute to social inequalities. How does this work?

Joe Soss: Since the early 1990s, criminal justice in the United States has been financialized. Institutions and practices that were paid for in the past through public taxes—often progressive taxes—have been turned into procedures that extract resources from poor communities, and disproportionately from poor communities of color. For example, people who stay in prison now face a number of “pay to stay” fees. They’re charged for their telephone calls. They pay to get all sorts of basic necessities from the commissary. They or their loved ones pay for video visitation. In some states, you even have to pay to read by purchasing eBooks on tablets. People also have to pay to be on probation or parole, alongside an explosion of court fees, fines, and financial restitution orders.

Financial conditions of bail have grown more common and are now typically set at higher amounts. Civil asset forfeiture, which emerged from the War on Drugs and expanded through the War on Terror, allows authorities to take cash and goods from people on the sole basis of the authorities suspecting they have illicit origins. In all of these ways and more, policing, adjudication, and punishment have been reorganized as resource extraction operations that generate revenues for both governments and corporations in the United States. These practices advance through a variety of predatory public-private partnerships, siphoning billions of dollars out of poor communities in the United States today.

Khachaturian: The book you are working on with sociologist Joshua Page seeks to do more than just expose these practices. What do you ultimately hope to shed light on?

Soss: One major goal is to get a better handle on the social, economic, and political effects of these practices, how they transform citizenship and democracy, and how they contribute to poverty and inequality. Predatory criminal justice practices can reorganize power relations between community members and the state in profound ways.

We’re also asking how and why new predatory practices emerged when they did, and in the form they did. There’s a long history of criminal justice institutions being involved in projects of dispossession in the United States. Through most of this history, though, criminal justice codes and practices have mainly supported labor predation, from slave patrols to convict leasing to prison industries.  

Through a process that began in the late 1980s, financial extraction has now reached into every corner of the system, in many ways overtaking labor extraction. How should we make sense of this development in relation to the longer history of a nation that has thought of itself, in many ways, as being deeply and essentially liberal? How should we locate the recent turn toward financial criminal justice predation in relation to a longer historical trajectory that includes, for example, chattel slavery and the taking of native lands?

Khachaturian: You emphasize that financial takings need to be seen as one component of a broader structural and systemic account of the transformation of U.S. political economy under neoliberalism. How do the criminal justice practices that you study fit into this broader turn in political economy? Are bail practices, for example, related to other trends of capital accumulation that target poor communities, such as subprime mortgages and payday lending?

Soss: We approach neoliberalism as a process in which market logics, rationalities, and normative standards get extended into new and increasingly diverse spheres of social and political life. In particular, we’re interested in the marketization of the state and the recasting of citizens as consumers.

Recent changes in the criminal justice field partly reflect a broader shift away from what John Kenneth Galbraith called the countervailing state—a state that works to counter market power, ameliorate its inequalities and destructions, and channel it in more pro-social directions. In today’s political economy, state and market powers are more often aligned and distinctions between the two become harder to ascertain. On one side, corporations are increasingly seen as public-spirited partners of the state and accorded the rights of citizens. On the other side, state actors are increasingly pressured to show a good return on investment, focus on the “bottom line” of performance standards, and so on. 

This blurring of boundaries has privatized a wide array of state functions, and, at the same time, marketized the state itself. When we talk about marketization of the state, though, we have to ask what kind of market we mean. Recent changes in criminal justice predation emerged at the same time that markets were undergoing a process of financialization. This convergence in time goes far toward explaining why the predatory criminal-legal regime that emerged combines aggressive financial extraction, private profiteering, and business-like state practices focused on the monetary bottom line.

As financialization, privatization, and marketization remade the political economy, they converged with a fourth development, securitization—a shift in the state’s protective role, away from a focus on the kinds of life risks addressed by the welfare state and toward a focus on domestic and global threats that call for policing, military, and carceral apparatuses. Securitization created opportunities for financialization, corporate investment, and the development of new modes state revenue generation. Together, these developments transformed the political economy of racial capitalism in ways that helped to bring a distinctive era of criminal justice predation into being.

Khachaturian: What does a predation framework tell us about how the state operates?

Soss: When most people think about criminal justice financial practices, they usually draw on concepts like “monetary sanctions” or “the criminalization of poverty.” This frames financial takings a punishment: fines, fees, and all the rest punish poor people, in many respects, simply for being poor. The rising tide of fines and fees, in this account, reflects a powerful culture of punishment advanced through muscular campaigns to get tough on crime. There’s a lot of truth to this view, and it helps us see some important aspects of our present condition.

The concept of predation is a complement to this frame. It helps us see the relationship between contemporary criminal justice extraction and the longer history of expropriative projects focused on subjugated groups. It also sheds light on the present. Finance-centered criminal justice predation emerged and grew amid a great flowering of predatory business models, many of which target the same poor communities of color. Some of the practices we observe in the criminal justice field closely track the business models of payday lenders that cultivate debt, charge interest, and aggressively pursue collections—as well as the too-good-to-be-true credit card deals, the student loans for for-profit universities, the subprime mortgage loans and subprime car loans and the furniture rental places, and so on. When people go to court and confront spiraling “legal financial obligations” they can’t afford to pay, or when they go to jail and find they can only gain release by paying predatory businesses in the bail industry, they’re usually not experiencing something entirely novel. Far too often, they’ve had similar experiences in their communities. There’s nothing uniquely “crime and punishment” about the experience of accumulating fees and fines, watching debts pile up, and confronting only predatory options for meeting needs.

Khachaturian: How does the predation framework allow us to see how class, race, and gender intersect to create these mutually reinforcing structures of domination and exploitation?

Soss: My co-author Joshua Page conducted a year and a half of ethnographic research working as a bail agent. Based on this, we recently published an article in the Russell Sage Foundation Journal of the Social Sciences analyzing how gender intersects with race and class to structure bail predation.

It’s probably not a surprise to many that the people who get arrested and sent to jail under charges in the United States are disproportionately poor and people of color. What fewer people appreciate, though, is how gender operates in this arena. If anything, there is a tendency to focus on men and masculinity. After all, men—disproportionately younger men of color from poor neighborhoods—are more likely than women to be in jail. But if we ask who bears the financial costs of criminal justice, a different picture emerges. When it comes to bail and a wide range of criminal justice sites, financial burdens are disproportionately borne by women, and particularly women of color. Estimates suggest that 83 percent of the adults who pay prison costs are women. The vast majority of people who sign off on bail agreements and wind up on the hook for payments are women. Why?

You have to start with what scholar Evelyn Nakano Glenn calls “the social organization of care”—the ways caring responsibilities and roles are defined, distributed, and organized along gender lines. Whenever Josh took on the case of a new client being held in jail, the first thing a supervisor at the bail agency would say is, “Have you called the mom yet?” The assumption was that it would be the mom, or in some cases an aunt, a grandmother, a sister, a girlfriend, or a wife, who would step up to take on the costs and risks. The primary targets of financial extraction often are not the same individuals who are arrested, charged, convicted, and imprisoned. Those people are the anchors for extractive operations that drain resources out of their surrounding social networks—loved ones, many of whom have not been charged with any criminal wrongdoing at all.

Khachaturian: Bail practices provide a window into how political power on the county and municipal level responds to broader political-economic dynamics. A lot of these local governments have undergone a budget crunch since the 1990s. What insights can we gain by beginning with a nationwide problem like mass incarceration, and then looking at the more granular level of local institutions and practices?

Soss: In the United States, from the 1970s on, we experienced a dramatic process of policy devolution that pushed fiscal burdens and policy responsibilities down to the states and localities. At the same time, federal officials made deep cuts to the funds they had been directing toward local governments, and states imposed all sorts of constraints on local governments’ abilities to raise revenues through taxes. These developments occurred against a more general backdrop of successful political campaigns to lower taxes on corporations and the affluent. Financial obligations and pressures rose considerably at the local level just as capacities for meeting them declined. The mismatch drove a powerful era of austerity, marked by rounds of social service cutbacks at the local level.

In the case of criminal justice, it was very hard for local officials to pursue a cutback-centered response. By the early 1990s, the racial politics of getting tough on “the underclass” had become a political juggernaut. Republicans were using crime and welfare as wedge issues—racial dog whistles designed to peel off disaffected white Democrats. Democrats played an equally critical role. Eager to prove that they weren’t soft on crime, they did little to stand in the way of this juggernaut and, in many cases, played key roles in driving it forward. At the state and local levels, tough-on-crime politics did more than just block criminal justice cutbacks; it also provided a basis for transforming criminal justice practices into revenue generators. In the name of getting tough on crime, you could raise fine levels. In the name of protecting taxpayers from being fleeced by criminals, you could shift court funding from taxes to “user fees.” In the name of protecting public safety, you could impose higher financial conditions for bail. In the name of locking up violators, you could turn to private corporations who promised to imprison convicted people at a bargain.

At the local level, you see the concrete manifestations of forces that people too often talk about in abstract and disembodied ways: the privatization of state functions, the marketization of state operations, the securitization of the state’s pledge to protect the citizenry, and the financialization of new arenas of political economy. You see local jails that were actually turning the bare walls of their jail cells into revenue-generators by selling advertising space; when defendants were put in jail, they would be locked up with a placard that had the number for one defense attorney and one bail bond business. Local officials were looking for anything and everything that they could monetize in some way. They were absolutely starved for revenues.

Khachaturian: The problem of mass incarceration has become part of the national political conversation. While you were conducting this research, did you see any changes in political mobilization, movements, litigation, or even just public commentary? What mobilizations or social movements would it take to challenge and abolish these practices?

Soss: The predatory injustices we’re studying are rooted in broader changes in the political economy. We’re not likely to completely undo them in the criminal justice field without much more radical and far-reaching changes. But in the past few years, movements like Black Lives Matter and protest efforts like the prison labor strikes have pushed criminal justice predation more squarely into the public spotlight. Alongside disruptive protests, there’s a lot of successful work being done through litigation campaigns. The recent Supreme Court decision in Timbs v. Indiana struck an important blow against civil asset forfeiture, which could open up new possibilities for further political action. There have been some important bail reform victories, as well as some efforts to curb charges on parents for juvenile detention. Just recently, California became the first state in the country to ban private detention centers and prisons.

One of the challenges is that criminal justice, like so much else in U.S. governance, is a highly decentralized and fragmented system. Successes in one state or locality may not change much in the rest of the country. The federal level doesn’t directly control state and local criminal justice operations, but it can serve as a powerful influence on the expansion or contraction of particular practices. At the end of the Obama administration, Attorney General Loretta Lynch spoke out very forcefully against criminal-justice privatization and prison profiteering. That was a pretty turbulent moment for the field. The stocks of the big private prison companies like the GEO Group and CoreCivic (formerly the Corrections Corporation of America) began to drop, and a lot of people began to wonder if federal officials might put some pressure on states and localities.  Donald Trump got elected shortly after that, however, and the stocks of prison corporations soared.

Lynch’s comments also illustrate how Democratic Party liberals tend to focus on things like privately managed prisons and the commercial bail industry. Criminal justice takings become, in this rendering, an example of the evils of corporate greed that good governments must oppose. Obama-era officials such as Lynch and Deputy Attorney General Sally Yates, for example, castigated for-profit prisons while celebrating the superiority of their publicly run counterparts. This contrast misses two critical points. First, the boundary between public and private prisons has become so blurred that abolishing “privately run” prisons is not at all the same thing as pushing for-profit companies out of the field. In “publicly run” prisons, the food is usually delivered, prepared, and served by a private company. The commissaries are usually run by a private company. Security, video visitation, telephone calls, e-books—you name it. Democratic officials tend to set aside as acceptable most of the for-profit contracting, painting a misleading picture of publicly run prisons as corporation-free spaces.

A bigger problem with this framing is that it ignores a fundamental point: revenue-seeking public actors in governments have played a leading role in the growth of practices that take financial resources from poor people in the name of criminal justice. Financial predation in the criminal-legal field today is not a problem unique to the private sector; it operates as a public-private partnership. Focusing on private prisons and commercial bail fits a preferred liberal narrative about bad market actors and the good government actors who try to keep them in check. In many ways, this is the mirror image of why libertarian conservatives like to talk about civil asset forfeiture. There’s probably a good new article on civil asset forfeiture every other month in Reason magazine. They love this issue because it fits into their preferred narrative about big government taking stuff from you. What’s hard to get people to talk about in the United States right now, politically, is how predation operates as a public-private partnership. What Josh and I are talking about is not a politics of states versus markets. It’s a politics of dominant groups versus subordinate groups, in which effective action for change must confront dominant actors in both the state and market who participate in a shared complex of predatory projects.

Khachaturian: The coronavirus pandemic has brought attention to the acute vulnerabilities of incarcerated people at this time. Has the crisis led to any shifts in the kinds of predatory practices you study?

Soss: COVID-19 is creating havoc in America’s prisons and jails. In pursuit of mass incarceration, the United States built an ideal setting for contagion, illness, and death: seas of people—many with pre-existing medical conditions—crammed into tight, closed-air quarters, and unable to maintain social distance. To manage the pandemic, public officials have instituted lockdowns, suspended visitation, and limited movement in other ways. For many people on the outside, it’s hard to imagine the fear, isolation, and mental anguish that, like the virus itself, is spreading among prisoners.

The pandemic is also altering, at least temporarily, the focus, intensity, and politics of criminal justice predation. At this point, my co-author and I see five important developments: 

First, as I’ve noted, predatory practices are situational: Their form and intensity shift according to the needs of state and market actors and the pressures they confront. This helps explain why criminal justice predation was more closely tied to labor needs and strategies in the convict-leasing era but has become more focused on financial extraction over the past three decades. Labor extraction has persisted, however. And in response to the coronavirus crisis, officials in a number of states have marshalled prison labor to produce critical public goods, such as hand sanitizer, hospital gowns, and surgical masks. New York City has even put prisoners to work digging mass graves on Hart Island.

Second, the public health crisis has created business opportunities for some carceral profiteers, such as prison telecom companies. People who have loved ones behind bars right now are desperate to hear a voice, see a face, and find out what’s happening inside. But with prisons and jails suspending in-person visits for almost any purpose, families and friends have to pay substantial charges for phone calls, emails, and video visits to connect with people on the inside. Some of the big telecom companies have made a show of giving prisoners a small number of free calls. It’s good PR that doesn’t jeopardize their sizeable bump in revenues extracted disproportionately from poor communities of color.

Third, the COVID-19 crisis is allowing journalists and activists to raise public awareness about exploitative and expropriative practices in U.S. penal facilities. For example, some news stories note that prisoners’ access to hygienic necessities (including soap) often depends on their ability to pay. Others have reported that states pay prison workers next to nothing to make public health goods while doing little to protect them from contracting the disease. (A particularly resonant storyline, widely shared on social media, has involved prisoners manufacturing hand sanitizer to protect people out in the community while being denied the product because it contains alcohol, a form of contraband.)

Fourth, a number of responses to the pandemic have disrupted normal practices. In light of desperate circumstances and the real potential for public backlash, some jurisdictions have paused collections of court debt and are waiving late fees and dropping warrants for unpaid bills. Arizona has started giving soap to prisoners at no cost and has suspended medical co-pays for prisoners with flu and cold symptoms. These sorts of responses demonstrate that powerful decision-makers can end predatory practices if put under significant enough pressure. The responses to the pandemic expose the political choices that underlie predation and suggest these choices are open to contestation and revision.

That brings me to our fifth and final point. Extractive practices have always generated political conflict, and major societal disruptions have shaped the history of struggle. Crises can draw public attention to predatory practices in ways that highlight their injustice; they can unsettle taken-for-granted interpretations that justify such practices; and they can demonstrate that, with the right kinds of pressure, it is indeed possible to change such practices. In fact, some activist groups are already using the public attention and political fluidity created by COVID-19 to push for changes that, if implemented, would outlast our present turbulent moment. For example, Color of Change is mobilizing around demands for free access to jail and prison communications throughout the pandemic. They’re leveraging this campaign to build support for free telecom access as a matter of prisoner rights. And these efforts are tied to organizing and agenda-setting work designed to contest the broader range of predatory injustices in the criminal justice field. 


Joe Soss is the Cowles Chair for the Study of Public Service in the Humphrey School of Public Affairs at the University of Minnesota. Among his books are Unwanted Claims: The Politics of Participation in the U.S. Welfare System and, together with Richard Fording and Sanford Schram, Disciplining the Poor: Neoliberal Paternalism and the Persistent Power of Race.

Rafael Khachaturian is a Faculty Lecturer in the Critical Writing Program at the University of Pennsylvania, where he teaches seminars on mass incarceration and democratic theory, and an Associate Faculty member of the Brooklyn Institute for Social Research. 

Correction: An earlier version of this interview wrongly suggested that CoreCivic would profit from the conversion of one of its prisons into a coronavirus care facility. CoreCivic would not make money from this arrangement. We regret the error.


Lima