Racism,fines and fees and the US carceral state

Carceral state theorising and its limitations on ‘race’

Recent burgeoning scholarship discusses the role of the carceral state in forming a group of politically, socially and economically disenfranchised citizenry, often concentrated in a handful of urban neighbourhoods. ²² There also exists a growing subset of academic literature connecting neoliberalism with state restructuring and the expansion of the punishment and surveillance mechanisms of the carceral state. ²³ This literature positions neoliberal governance and policies as responsible for hyper-punitive policies and the uniquely American phenomenon of mass incarceration. Yet, very little of this scholarship on the expansion of the carceral state embeds colourblind racism within the neoliberal governance framework and explores the implications of it for local government institutions such as police departments, courts, surveillance mechanisms such as probation administration, and jail. Even more concerning is the way a focus on felony convictions and prison incarceration, i.e., mass incarceration, obscures the common, low-level forms of carceral state contact that produce and reinforce inequalities along race and class lines. Simply put, the size, scope and implications of the carceral state, particularly for urban communities of colour, are grossly underestimated. The conversation must move from mass incarceration in prison to one of mass criminalisation, to fully grasp that state’s impact.

Marie Gottschalk in Caught: the prison state and the lockdown of American politics skilfully engages the interconnections between neoliberalism and the carceral state, but neglects to embed racial ideology within the neoliberalism paradigm itself. ²⁴ Her contention that a focus on racial disparities disguises the function of the wider political economy and its role in an expanding carceral state treats neoliberalism and racism as mutually exclusive. This reading of race, by Gottschalk and other scholars, as mutually exclusive from neoliberal policy and governance, misses the ways in which racism, in its current colourblind manifestation, is part and parcel of the neoliberal project. Race need not be a conversation that distracts from or is treated as distinct from other processes in the political economy leading to heightened incarceration, as it is instrumental to understanding both the historical and contemporary function and role of the American carceral state for managing black labour. An analysis of race within the context of neoliberalism is also instructive as to the ways race is a malleable social construction with contours that change and transform in response to shifts in the political economy.

The dominance and totalising nature of neoliberal urban governance that crowds out other alternatives and the transition to a bifurcated, postindustrial economy are relatively new phenomena arising in recent decades. However, the disproportionate racial consequences of the carceral state are foundational to American society. The legal machinery of the carceral state has always operated as a mediator between black labour and capitalist modes of production, particularly because race also functions as a hierarchical relationship ‘rooted in the capitalist division of labour’. ²⁵ Outgrowths of the economic role of race are both the social meaning attached to it, for example how space and phenomena are interpreted in racial terms, and the deployment of race as a salient political category driving policy decisions and the divvying out of resources by government institutions. The maintenance and control of black populations in connection to the economy remains as a social and political impetus to the American carceral state with its power to punish and surveil.

From Jim Crow to the colourblind racism of neoliberalism

In the past fifty years, a shift from Jim Crowism (the official or legal policy or practice of segregating black people) to colourblind racism (‘the ideological armor for a covert and institutionalized system in the post-Civil rights era’ ²⁶ ) has manifested itself in the dominant neoliberal approach to governance and has justified an expansion of the carceral state while continuing to replicate racially disparate outcomes. Moving from Jim Crowism to colourblind racism occurred alongside the growth of neoliberal governance through free-market policies, privatisation, and a scaling back of social welfare programmes. (Which is not to say that neoliberalism is responsible for the shift towards colourblindness; rather, racial colourblindness became merged with neoliberal forms of governance to justify more punitive interventions in black urban communities.)

For Loïc Wacquant, who argued that the legal order of the Jim Crow South and its criminal justice appendages functioned to socially ostracise and extract the labour of newly freed black Americans, ²⁷ in the current era, the carceral state operates to ‘warehouse the precarious and deproletarianized fractions of the black working class’. ²⁸ This assertion regarding state restructuring is only partially accurate in that it solely focuses on the phenomena of mass incarceration and prison populations instead of also including the broader apparatuses of the carceral state, such as the proliferation of assessing fines and fees for low-level offences. In the postindustrial economy, where unemployment among black urban populations is heightened and work is often temporary, low-wage, with minimal benefits, the carceral state also demobilises black populations through aggressive broken windows policing practices, continues to socially ostracise blacks by functioning as a poverty enhancer for those caught in its reach, and also extracts government revenue in an era of austerity through the imposition of fines and fees.

Historically, legal schemes and edicts criminalising a stratum of activities were most harshly imposed against blacks in the rural South, and were supported by an explicit logic maintaining racial separation. ²⁹ In contemporary times, the ideological framework of neoliberalism, its colourblind market ideology and its rhetoric of individual responsibility serve to justify the racially disparate outcomes of the carceral state in nonracial terms. Not only does it rationalise away such disparities, the neoliberal project also deploys colourblind racism as an impetus for local carceral state policing and court practices. Writing on urban development projects, Christopher Mele argued that a racial colourblindness coincides ‘with the political economic aims of neoliberalism’ to legitimise ‘policies and practices that reproduce and enhance sociospatial inequality’. ³⁰ Further expounding on the connection between neoliberalism and colourblind racism, Eric Ishiwata wrote, ‘colorblind racism has effectively recoded the incongruent effects of systemic racism in stringently individual and non-racial terms’. ³¹

Looking at the now infamous local jurisdiction of Ferguson specifically, government officials predicated contact with the carceral state on a lack of personal accountability for appropriate behaviour. ³² The neoliberal rhetoric of individual responsibility was positioned to justify the municipality’s fines and fees practices, and defendants were viewed as simply ‘paying the fair share of government’. This rhetorical positioning of racially disproportionate carceral state outcomes as a function of individual responsibility in the market validates the expansive reach of criminal justice fines and fees in poor communities of colour. It is an example of Bonilla-Silva’s explication of the ways in which racially disparate outcomes are explained away as market dynamics or shortcomings in culture. ³³

Managing black labour − resonances from the past

The modern phenomenon of fines and fees demonstrates how the carceral state plays a fundamental role in managing black labour, but the criminal justice system’s disproportionate impact on black people has a striking historical precedent. Writing of the post-Emancipation era in the South, Du Bois claimed that the court system was being used to deprive newly freed blacks of their freedom. ³⁴ Through a combination of an intricate network of lien laws, Black Codes, and the system of convict leasing, the courts constrained the economic freedom of blacks and also used criminal convictions to fill state coffers and benefit private interests. ³⁵ In essence, the criminal justice system functioned to control black labour in the wake of Emancipation during the economic shift towards industrialisation in the South. During post-Emancipation, laws were passed criminalising low-level activities such as mischief and insulting gestures, as well as vagrancy and being unemployed. Heightened punishments accompanied these laws, criminalising a wide array of everyday life activities, and they were heartily enforced against blacks. ³⁶ Throughout the South, statute books were written to reinforce planters’ control over their labour force. ³⁷

This elaborate network of new crimes with their associated punishments operated in conjunction with a convict lease system in which prisoners were contracted out for labour. During the decade following Emancipation, the convict population grew ten times faster than the general population, prison populations became overwhelmingly black, and the length of sentences was extended. ³⁸ Even as late as the second world war era, the criminalisation of petty activities, and the use of fines and fees as a mechanism for enforcement can be found:

With so many young men serving in the military and the demand for citrus products increasing with every month, growers were scrambling to find enough hands to work in the groves. Every able body was needed and in January 1945, Florida governor Millard Caldwell sent letters to all sheriffs in the state, urging them to ‘use their good offices’ to take vigilant action to enforce ‘work or fight’ laws that were designed to ‘prevent loitering, loafing and absenteeism’. To further incentivize Florida law enforcement, Caldwell’s statute allowed sheriffs to pocket all of the fines they collected up to a yearly maximum of $7,500. ³⁹

In essence, this brief exploration of fines and fees in the late-nineteenth century allows for a consideration of how the carceral state is integral in mediating the relationship between labour and capital in the political economy. The expansion of the carceral state during Emancipation and the more recent hyper-punitive turn, beginning in the 1970s, both with racially disparate effects, illustrate the interconnection between the carceral state and the political economy, particularly when economic shifts are taking place. We now live in a postindustrial era of dwindling job opportunities and precarious ‘gig’ and low-wage work. The similarities between carceral state practices in the two periods reveal how economic shifts transform the way the carceral state shapes and manages black labour.

Management for the postindustrial free market

In contemporary times, the increasing imposition of criminal court fines and fees, and their disproportionate racial implications, are best understood as a roll-out of neoliberal urban governance unfolding in a postindustrial economy. Thus, the colourblind racism of neoliberalism moves beyond a simple rationalisation of disproportionate outcomes and serves as the foundation for racially unequal policies and practices. Neoliberalism has fundamentally changed the definition of what it means to be a citizen occupying urban space. ⁴⁰ It views citizens as revenue generators, and participation in government is implicitly predicated on individual responsibility and participation in the free market. Further, neoliberal urban governance conceives of urban space as solely having value based on the profitability of its exchange in the market. All of these nuances of neoliberal ideology are tied to social constructions of race, and are ‘rolled-out’ via broken windows policing practices designed to maintain order in areas of concentrated poverty, and through harsher penalties and sentencing for even the pettiest of crimes.

The transition from Jim Crow practices of the carceral state, relegating black Americans to an exploited, captive labour population, to contemporary carceral state practices that both warehouse and extract revenues from urban populations is an example of what legal scholar Reva Siegel identified as ‘preservation through transformation’. While the status-enforcing regime may change over time, moving away from overt racial classifications to colourblindness, the fundamental relationships of power remain intact and continue to replicate unequal outcomes. ⁴¹ As the economy shifted from industrial to postindustrial and neoliberalism became the dominant form of ideology, conceptualisations of race also changed from Jim Crowism to colourblindness to justify increased carceral state intervention in urban centres. Heather Ann Thompson also captured this shift by comparing the criminalisation of rural African American spaces with the criminalisation of urban space in the post-second world war era that was responsible for the massive expansion of the American prison population. ⁴²

Within the context of the carceral state, the racially coded language of criminality, even in relationship to the most petty of offences, legitimises the unequal structural relationships embedded in the postindustrial political economy. Numerous scholars have noted the profound connectedness between race and crime and criminality in America that predates the era of neoliberalism. ⁴³ But social constructions in the popular imagination conflating blackness with an inherent predilection towards criminality have merged with the neoliberal discourse of personal responsibility and individual accountability in a way that now justifies the systematically racially biased carceral state through ‘law and order’ politics. Politician advocates for the War on Drugs, including Nixon and Rockefeller, positioned drug trade participants as responsible both for their own condition and broader societal problems, including social and economic insecurity. ⁴⁴

Neoliberalism and ordering urban space

A closer look at the ticketing and enforcement of misdemeanour offences, traffic violations, and the criminalisation of low-level activity reveals their relationship to a very specific element of neoliberal policy − its orientation towards urban space. The neoliberal requirement of greater order to increase the value of space in the market has shaped the function and form of urban crime control through a re-emergence of order maintenance policing practices, focused on petty, low-level activity. In the broken windows policing era, the conceptualisation of urban space as requiring order has led to policies imposing strong sanctions, including arrest, for even the smallest of perceived ‘criminal’ violations such as possessing an open container, loitering, and criminal trespass. These increasingly punitive law and order measures operate to criminalise even the most minor of behaviours. ⁴⁵ ‘Broken windows policing’ ties into the neoliberal logic of urban space having worth solely based on its market value. ⁴⁶ This conceptualisation of space is also inextricably linked to social constructions of race and the systematic operation of racism used to rationalise unequal economic relations.

Ideas about spaces of disorder and what type of areas require state intervention to maintain order via the deployment of the carceral state have always been coloured by race. The social meaning of space is integral to urban government policy, especially when ‘inner cities’ are equated with being black, poor, lacking in values and unstable families. ⁴⁷ Even the winner of the 2016 presidential race articulated the idea of black people in urban centres as being at risk of violence and poverty and in need of law and order policies. The racially disproportionate deployment of ‘stop and frisk’ policing practices in communities of colour by departments in New York and Chicago are well documented. ⁴⁸ The persistence of residential racial segregation and the ways in which poor communities and communities of colour are hyper-policed in the United States fuel the racially disproportionate effects of fines and fees, and also concentrate the poverty-enhancing effects of their assessment and collection.

According to Jamie Peck, author of Neoliberal Constructions of Reason, the roll-out phase of neoliberalism involves governmental actors seeking to intervene, ameliorate, and regulate the rising costs of public austerity and social abandonment. For him, neoliberalism’s unfolding is realised through a combination of political action and institutional reinvention. The practice of using municipal court fines and fees to generate city revenues and the policing styles it incentivises are a keen example of the neoliberalisation of urban policy. And we see the institutional reinvention of urban police departments and court officials as ‘collection agencies’, to use the terminology of the former Attorney General Eric Holder.

While much of neoliberal ideology calls for a retreat from the state (so the market can reign), neoliberalism can simultaneously entrench the state’s capacity to surveil and punish. The resulting state, characterised by a dismantling of its economic and social arms while simultaneously expanding its ‘penal fist’, is described by Wacquant as a centaur. ⁴⁹ The imposition of fines and fees is a function of ‘neoliberal penality’; where government increasingly passes new criminal sanctions and heightens punishments as a logical state intervention to ‘calibrate the calculations of rational actors’.

Conclusion

In the current climate, racially disproportionate carceral state practices, epitomised by fines and fees as reviewed in this article, are both produced and legitimised through the colourblind racism embedded in neoliberalism. There are clear material interests in pursuing racist carceral state practices for local police departments and court officials, similar to the fiscal incentives for governments and the planter class in the Jim Crow South. In the postindustrial era where austerity government has created a need for increased government revenue and there exist surpluses of labour, the carceral state is deployed to extract revenues from poor communities of colour through a system of fines and fees. Neoliberal conceptions of space as being valued solely for their exchange rate in the market help fuel broken windows policing practices, disproportionately carried out in poor communities of colour.

While this article sketches a starting framework for understanding how neoliberalism and race are interconnected through an exploration of fines and fees, much more empirical research is needed on this subject, for many questions remain unanswered. For example, data is needed on the disparities in and among municipalities and their use of fines and fees. Also, do certain jurisdictions impose greater fines and fees on black defendants and, if so, what are the characteristics of those jurisdictions? What are the specific consequences for individuals and communities where the assessment of fines and fees of defendants is concentrated in a handful of neighbourhoods? Lastly, more reports such as that involving the Ferguson police department are needed to help bring to light the colourblind racist rhetoric of government officials and the use of the carceral state as a means of generating government revenue. These are just a few of the questions that need to be empirically studied to help further understanding of the ways fines and fees replicate anew inequalities along lines of race and class in different ways.