November 16, 2015

Get to Work or Go to Jail: Free Labor in the Shadow of Mass Incarceration

ACSblog Symposium on Labor and Economic Inequality, criminal justice debt, immigration


by Noah Zatz, Professor of Law, UCLA School of Law

*This post is part of ACSblog’s Symposium on Labor and Economic Inequality.

Three vibrant movements of our time are Black Lives Matter, theDREAMers, and Fight for $15. For many progressives, only the last may seem directed at our topic of work and inequality. That intuition is wrong. Legalized state violence – incarceration, deportation, even killing – can and does depress labor standards and enable workplace exploitation (and vice versa).

We too often separate struggles against racialized state violence from those challenging economic inequality. The former seem to be about the public exercises of government power, while the latter seem to be about private exercises of corporate power. This is both an analytical error and a missed political opportunity.

Think of criminal justice, immigration, and labor as three points of a triangle. Activists and academics increasingly link mass incarceration and mass deportation, especially as immigration enforcement is criminalized. Likewise, the government’s threat to detain and deport has been linked to employer power. Guest workers face deportation if they exercise the most basic labor right, the right to quit, and undocumented workers labor under employer threats to call in immigration enforcement. Employers use this power to disrupt organizing, degrade working conditions, and depress wages.

An incarceration-labor connection parallels this immigration-labor connection. This connection mirrors the thoroughly racialized ways that immigration policy produces workplace disadvantage. That historical pattern continues today as Latina/os and others treated as presumptively “foreign” face profiling by employers and government authorities. Similarly, racism has long structured criminal justice in the U.S. From defining what is a crime to the notorious cocaine sentencing disparities, from the frequency of police stops to searches to uses of force, the criminal justice system casts an especially dark shadow over communities of color, and not by coincidence.

How do these immigration/criminal justice parallels extend to their connection to labor? Looking beyond the immediate brutality of police killings and human caging, critics often see in mass incarceration a system of racial exclusion, not labor subordination. And exclusion from decent jobs certainly is a serious consequence of arrest, conviction, or incarceration, as the movement to Ban the Box has highlighted. But pervasive criminalization does not simply erect barriers to employment. It also forces people into work on subordinated terms.

Probation and parole exemplify how this can happen. These criminal sentences condition freedom from incarceration on compliance with various behavioral rules. A typical condition is seeking and maintaining employment. Thus, failing to find a job, or losing one, can be deemed a violation that justifies sending an unemployed worker to jail.

Another example emerges from the criminalization of poverty. Ferguson thrust into national attention how criminal justice debt can operate as a legalized extortion racket to extract payment from and criminalize low-income communities of color. These new debtors’ prisons also yield debt peonage. The threat of incarceration for debt provides the basis to compel and subordinate labor, as when those who cannot pay are required instead to perform unpaid “community service,” such as picking up litter along the highway. Although framed as a generous “alternative to incarceration,” the choice presented is between working for free and losing your freedom. In Los Angeles, these workers must declare that they are not employees and have no rights as workers, and a federal judge in New York recently held that a similar program had no duty to pay its workers.

This coercive use of debt extends beyond community service into conventional low-wage jobs.  Child-support enforcement shows how. The California Supreme Court has ruled that the duty to pay creates a duty to earn the means to pay, that an unemployed parent may be jailed without evidence that he had turned down or quit any particular job, and that none of this offends the constitutional prohibition on involuntary servitude. In that case, the trial judge had assumed that the parent could always have gotten a job at McDonald’s had he wanted to. This criminalization of unemployment created the backdrop to the high profile police murder of Walter Scott in North Charleston, S.C. Scott was shot in back while fleeing an arrest warrant for nonpayment of child support.

These work requirements reprise many themes from welfare reform. Conservatives deny or ignore structural barriers to employment, insisting that unemployed people are just being too choosy and need to buckle down, lower their expectations, and work harder for less. Many liberals accept work mandates but try to soften their edges by incorporating supportive services. Indeed, child-support enforcement and welfare politics are deeply connected, both by the racist imagery pairing “welfare queens” with “deadbeat dads” and by government’s capture of child-support collections to reimburse itself for public assistance outlays. Much as the Clinton administration embraced and implemented welfare reform, the Obama administration has been advocating and funding a widening infrastructure of employment programs aimed at noncustodial parents, often (though not always) backed by the threat of incarceration.

In principle, such programs can expand workers’ job opportunities. Working against that hope is the threat of incarceration, persistently racist and classist views about the work ethic and competence of disadvantaged workers, and the temptation for the government and private employers to supply themselves with cheap, vulnerable labor rather than spend money on meaningful training and work supports. Unpaid, forced community service exemplifies that threat. Less extreme, but still deeply troubling, is the specter of workers being farmed out to McDonald’s, a temp agency, or Uber.

It is hard to imagine a greater source of leverage for employers than the threat that the government can be called in to incarcerate unruly workers. Imposing this burden on workers’ ability to demand a raise, organize a union, or quit in protest creates tremendous vulnerability for those who labor under this threat. Furthermore, employers can use this captive workforce to undercut other workers who fear replacement. 

Exactly how serious this threat is, and how it plays out on the ground, are questions that call for investigation. But the history of deploying state power to create mutually reinforcing systems of racial caste and labor subordination – from the Fugitive Slave Act to convict leasing to vagrancy laws to the Bracero program to modern immigration enforcement – should call us to attention. Vigilance is particularly important as the current wave of criminal justice reforms move to replace incarceration with surveillance and control of those nominally free.

Insofar as low-income communities of color are put to a choice between state violence and bad jobs, Black Lives Matter speaks to how that violence is sustained by a racist insensitivity to, or even embrace of, its cost in life, limb, and liberty. In complementary fashion, the call that Black Workers Matter means aspiring to more than an ever-dropping bottom of the labor market, and not accepting these scraps as something to be grateful for because at least it is not prison.