A New Peonage?:
Debt Enforcement as Labor Regulation in the Era of Precarious Work
in preparation for
Noah Zatz
[email protected]
The Thirteenth Amendment Through the Lens of Class and Labor
@ Seattle University School of Law
Dear Colleagues:
I eagerly await our conversations in Seattle. Unfortunately, I am behind schedule
on my paper. What I am sending you below is the closely related paper I am
presenting two days before at Law & Society. For our conference, I plan to focus
in more detail on the child-support enforcement cases and their 13th amendment
analysis, so this provides the big picture within which that line of analysis is
situated.
Thanks
Noah
“Precarious Work in the Carceral State: Seeing the Invisible Fist”
Noah Zatz
for presentation at the Law & Society Ass’n Annual Meeting, Seattle, WA
May 30, 2015
Preliminary draft as of May 15, 2015
* * * Not for circulation * * *
[PP blank]
The subtitle’s phrase “invisible fist” of course plays on the notion of the
invisible hand by which market outcomes supposedly are produced from the
aggregation of private decisions unmolested by the state. What we want to explore
1
here, building on a long tradition of doubting the public/private divide between
state and economy, is the extent to which so-called market outcomes are produced
through the threat or application of state violence, the strike of the fist. Invisibility
here does not connote intangibility, but instead marks the relative absence of state
violence from conventional accounts of labor market inequality, including
accounts in broadly critical and progressive veins. Conversely, I shall suggest that
scholars and critics most focused on state violence too often have treated it as a
phenomenon external to and disruptive of labor markets, rather than internal to and
constitutive of them.
This kind of relationship between state power and work was suggested in
public confrontations following the police killing of Michael Brown in Ferguson
and the non-indictment of Darren Wilson, the officer involved.
[PP next: Hands Down]
Protestors chanted “Hands Up, Don’t Shoot,” and counter-protestors responded
with the slogans seen here on the screen. “Hands Down, Go To Work.” I read
“Go to Work” as neither a non sequitur nor a generic slap at public protest, as “Get
A Job” sometimes can be. In this overtly racialized context, it is hard not to hear
the recurring racist trope of the insufficiently motivated Black or Brown worker
who needs some kind of kick in the pants or lash of the whip to be productive,
from slavery to convict leasing to welfare reform. I want to explore how state
violence sends and enforces that demand to “get a job” in ways that pervade lowwage labor markets and contribute to their racial stratification. And although
policing and incarceration provide a paradigm, we can think quite broadly about
physical state violence against civilians that also occurs through deportation in
immigration enforcement, child removal through the child welfare system, and
civil contempt sanctions, to name just a few examples.
[PP next blank]
Relative to much critical commentary both on contemporary labor markets
and on criminal justice, the idea that today’s state operates to send and enforce the
message “get a job” seems precisely backwards. This is true in two respects.
First, on the labor & employment side, consider the long-running concern with
deteriorating labor standards, increasingly lumped under the catchphrase of
“precarious work.” The dominant narrative can fairly be characterized as linking
2
increased precarity to a rising neoliberalism, a neoliberalism characterized by state
withdrawal from effective labor market regulation.
To give just one example, Annette Bernhardt and collaborators frame the
problem this way in their introduction to the volume “The Gloves-Off Economy:
Workplace Standards at the Bottom of America’s Labor Market.” They
characterize the new “gloves-off economy” as one consisting of “employer
strategies and practices that either evade or outright violate the core laws and
standards that govern job quality in the United States.”1
The overall story is one of de facto and de jure deregulation. Legally, as we all
know, an important piece of this story is the disintegration of the Fordist firm and
the rise of independent contracting, sub-contracting, and temporary staffing
agencies, all of which undermine the employee-employer relationships that provide
the foundation for labor & employment law.
Even more expansive accounts of precarious work stick to the same overall
story line. For instance, some sophisticated versions appreciate the interplay
between the regulatory and distributive arms of the social welfare state. This
perspective observes how lowering the social safety net weakens workers’
bargaining power by intensifying the “work or starve” logic of capitalism. Even
so, that analysis remains within a T.H. Marshall-style account of the welfare state
as a counterweight to markets2, even while respecting the division between those
spheres.
Similar points apply to observations that deregulation unleashes competitive
forces that drive labor standards downward, from free trade to deregulation of the
trucking industry, to selectively under-enforced immigration policies. Here, the
state is acting but by getting out of the way and letting the consequences of
unequal bargaining power play out in labor markets.
Throughout these accounts, the common thread is the notion of a shrinking
state. The problem for labor & employment law therefore is defined as how to get
1
Annette Bernhardt, et al., Introduction, in THE GLOVES-OFF ECONOMY: WORKPLACE
STANDARDS AT THE BOTTOM OF AMERICA'S LABOR MARKET (Annette Bernhardt, et al. eds.,
2008).
2
T.H. MARSHALL, CITIZENSHIP AND SOCIAL CLASS (1992 [1949]).
3
the state back in. The state does not directly demand that workers “get a job,”
though it maintains a property regime that makes this a practical necessity.3
Understanding the present era as one of a shrinking state is facially absurd to
anyone who spends a moment thinking about criminal justice. That is most
obviously true with the rise of hyper-incarceration that puts millions of Americans
behind bars at any one time. But the point extends to order maintenance policing
and recent moves toward more expansive noncarceral supervision via front-end
diversion efforts like drug courts and through increased reliance on back-end
sentences of probation or parole. All of this of course is thoroughly racialized, a
point much more central to discussions of criminal justice than of precarious work.
In the criminal justice context, the state takes center stage as a violent actor, not
one withdrawing the wings. Nonetheless, this assertion of state power is not
generally understood to take the form of commands to “get a job.” Here I am
setting aside prison labor, though ultimately I want to challenge the conventional
distinction between imprisoned and free labor that I’ve written about elsewhere.4
Of course, scholars and activists have focused on a different kind of intersection
between criminal justice and the labor market. Many critical perspectives on the
carceral state contend that it sends and effectuates the opposite message, a message
of “don’t work.” The trope here is one of labor market exclusion and so-called
“barriers to employment.”
For instance, this perspective animates Michelle Alexander’s The New Jim
Crow. Her searing indictment of racialized mass incarceration is organized around
the idea that this system “permanently locks a huge percentage of the African
American community out of the mainstream society and economy” (13).
I’m no historian, but this idea of economic exclusion has always struck me as a
discordant note. I understand Jim Crow to have been in part a system of racialized
labor subordination, one that operated simultaneously through exclusion from
relatively good jobs in combination with compulsion into bad ones. That
3
Cf. Christopher Tomlins, Subordination, Authority, Law: Subjects in Labor History, 47
INTERNATIONAL LABOR & WORKING CLASS HISTORY 56, 59 (1995) (criticizing E.P.
Thompson for characterizing 18th and 19th century Anglo-American labor regimes as operating
via “the discipline of the clock, not the dock”).
4
Noah D. Zatz, Working at the Boundaries of Markets: Prison Labor and the Economic
Dimension of Employment Relationships, 61 VAND. L. REV. 857 (2008); Noah D. Zatz, Prison
Labor and the Paradox of Paid Nonmarket Work, in ECONOMIC SOCIOLOGY OF WORK 19
(Nina Bandelj ed., 2009).
4
compulsion operated through debt peonage, vagrancy laws, & other devices.
Rather than exclusion, it is inclusion into the bottom of a labor hierarchy.
Loic Wacquant shares this latter perspective on the old Jim Crow, and yet he
roughly tracks Alexander in his account of the contemporary regime. In his article
“From Slavery to Mass Incarceration,” Wacquant sees a break with the past:
What makes the racial intercession of the carceral system different
today is that, unlike slavery, Jim Crow, and the ghetto of the midcentury, it does not carry out a positive economic mission of
recruitment and disciplining of the workforce: it serves only to
warehouse the precarious and deproletarianized fractions of the black
working class,
factions who are out of work for one reason or another (54).5
Similarly, a recent report by a Berkeley law clinic characterizes the mix of
policing, conviction, incarceration, and fines arising from anti-homeless laws this
way: “Enforcement thus creates barriers to finding and maintaining work, which
makes it more difficult for homeless people to escape poverty.” (28)
This barriers frame is not entirely incompatible with the compulsory work
story. Locking people out of one tier of the labor market can confine them to and
make them more vulnerable within a lower tier. That more or less is how criminal
records issues are positioned within Bernhardt’s “Gloves-Off Economy”
introduction, as well as in work by Jamie Peck & Nik Theodore on “Carceral
Chicago.” Nonetheless, within this frame labor compulsion is seen as originating
in the need to eat, not in edicts from the state. To the extent that barriers become
complete, rather than simply channeling economic need toward the worst jobs, the
alternative system of social provision becomes what Wacquant calls “prisonfare.”
Here, a brutally dismal social minimum is maintained through incarceration,
understood as a way to contain the disorder of those exiled from the labor market.
So those are foils against which I’m operating – the deregulated labor market
and the obstructionist criminal justice system --as well as some reasons to doubt
the completeness of these accounts.
Let me now get more concrete by talking briefly about child-support
enforcement. Horribly, some of my gist is captured by the recent murder of
5
To extent Wacquant sees any affirmative labor discipline in the current regime, it is through
prison labor, not work by those outside the prison walls.
5
Walter Scott, who was shot in the back while running from a police officer in SC.
Scott is widely thought to have been fleeing an arrest warrant originating in his
nonpayment of child support. The state was telling Scott to “go to work” or go to
jail, and when he tried to escape the double bind, it killed him.
Legally and institutionally, the public child-support enforcement system has its
roots in public assistance for low-income families with children. The basic idea is
that people who don’t have their own wage income on which to subsist should turn
to “private” resource sharing within families before turning to “public” resource
sharing through the state. Just as benefits recipients are required to seek wages as
an alternative to benefits, so too are they required to seek child support as an
alternative income source. If they do not cooperate in establishing paternity,
obtaining child support orders, and enforcing those orders, they cannot receive
assistance, what Anna Marie Smith has termed “paternafare.” Moreover, custodial
parents must assign to the state their rights to any payments, so that the state can
use child support to offset benefits paid. More generally, states are required to
participate in an elaborate, partly federalized system of reporting and tracking child
support, in part to allow for national systems of garnishing wages, tax returns, and
other payments. In 2013, there were about 13 million child-support orders in that
system. Those subject to these orders are concentrated in lower-income
communities and communities of color.
This system is organized around the figure of the “deadbeat dad” who has a
steady income but refuses to support his children, thereby shifting the burden to
their custodial mother. But that narrative built around a middle-class divorce story
has limited application to noncustodial parents of low-income kids. Typically,
both custodial and noncustodial parents have very limited job prospects. Thus, the
dominant issue is not inadequate sharing of earnings, but inadequate earnings to
share. And once low earnings become the crux of the matter, attention
immediately turns to parents’ work behavior.
With the work patterns of non-custodial parents at issue, we can pretty much
recycle positions familiar from welfare work requirement debates, including their
racial politics. This is quite explicit, for instance, in the work of Lawrence Mead,
the leading academic advocate of conservative work-based welfare reform. Mead
has seamlessly transferred his arguments for mandatory, “Work First” welfare
work programs into arguments for mandatory, work-first programs aimed at noncustodial parents. Mead argues as follows:
6
Raising poor men’s work levels, like welfare mothers’, will require some
combination of help and hassle. . . . Even when opportunities are improved,
a disorderly lifestyle must still be curbed before these men can take hold in
the labor market and advance. So obligations to work, not just better
chances, appear indispensable.6
Now this is where the carceral state comes in.
In the welfare context, saying that work is “required” or “mandatory” means
that the state will refuse to make public assistance payments unless certain work
requirements are met. The enforcement mechanism is refusal to pay. But in the
child-support context, the state is trying to collect payment from noncustodial
parents. Without any baseline of government transfers, the state cannot threaten to
withhold payments as leverage to get noncustodial parents to work. Nor are civil
debt collection methods terribly effective against low income people who have no
credit rating to lose and may well be working outside the formal economy.
Fortunately for Mead, we have debtor’s prisons. Because child support
obligations are not mere “private” debts but arise from the orders of a family court
judge, these obligations can be enforced in contempt proceedings. And one
sanction for civil contempt is incarceration. There also often are freestanding
criminal penalties for nonpayment of child support.
Now, formal legal doctrine still declares it unconstitutional to jail someone just
for being poor, so the bare fact of nonpayment cannot legally be basis for either
contempt or conviction, though this principle often goes unobserved. Instead of
bare nonpayment, the legal touchstone is “willful nonpayment.” It is the choice
not to pay, despite the ability to do so, that brings down the fist.
But choice is a notoriously slippery concept, so what does this really mean?
Willful nonpayment certainly encompasses far more than merely having money in
the bank but refusing to write a check. Instead, it also includes the willful failure
to acquire money in the first place. So the practical content of willful nonpayment
turns out to be voluntary unemployment, and the defense of inability to pay turns
out to mean inability to work, or to work enough. Therefore, the duty to pay
becomes a duty to work, as the California Supreme Court recognized in 1998. In
Moss v. Superior Court, it reasoned that California law authorized imprisonment as
a child support contempt sanction for someone who “fails or refuses to seek and
accept available employment for which the parent is suited by virtue of education,
6
LAWRENCE M. MEAD, EXPANDING WORK PROGRAMS FOR POOR MEN 32 (2011).
7
experience, and physical ability.”7 In that case, the trial judge had reasoned that in
the absence of disability, the obligor surely “could get a job flipping hamburgers at
McDonald’s.”8
In this way, what on its face is a matter of debt and payment turns out in
substance to raise the most enduring and fundamental question of the liberal
welfare state: how to distinguish between voluntary and involuntary
unemployment. In the traditional welfare state context, this line is drawn in order
to decide whom to pay and whom not to pay. In the child-support enforcement
context, we now see the carceral state drawing the same line, though not
necessarily in the same place, in order to decide whom to jail and whom to set free.
Having arrived at this classic issue, I want to telegraph, but without the time
to provide details, several specific dynamics, familiar from public benefits law and
administration that recur in this new context:
First, we see a strong pattern of “institutional isomorphism,” as specific
work program models developed to enforce welfare work requirements are
replicated as child-support enforcement techniques. As in welfare, compliant
participation in these programs becomes the test of willingness to work. Touted as
offering the prospect of “jobs not jail,” such programs are being actively promoted
by the Obama administration.
Second, issues of discretion are paramount, except now the street-level
bureaucrats are in the child-support agency and its contractors, not the welfare
agency.
Third, these work tests always are about which jobs, not just about jobs vs. no
jobs. Is unemployment willful if someone turns down a job that is unsafe, that
requires mandatory overtime, that conflicts with child-care obligations, that breaks
a strike? The invocation of choice only obscures a host of implicit labor standard
setting decisions that determine which jobs must be sought and accepted and which
can be avoided or turned down.
Fourth, precisely because labor standards are at issue, rules directly applied to
those subject to work requirements have broader implications for the labor market
as a whole. If a noncustodial parent can be imprisoned for refusing to be a
strikebreaker or for refusing to undermine prevailing wages, then that obviously
7
8
950 P.2d 59, 76 (Cal. 1998).
Id. at 80, n. 16.
8
undermines the bargaining power of those he would be forced to replace. The
extreme example of this is unpaid community service, now a staple alternative to
debtor’s prison. Under welfare reform, assignment to workfare positions was used
not only to discipline those who claimed involuntary unemployment but also to
discipline public sector unions who faced replacement by unpaid labor.
I will close by briefly noting two continuities between child-support
enforcement and mechanisms more closely associated with criminal justice.
Sticking with debt theme, financial obligations arising from criminal justice fines,
fees and restitution raise quite similar issues. Again, incarceration for nonpayment
is available but subject to a willfulness standard, suggesting the same chain from
nonpayment to an inquiry into the voluntariness of unemployment.
Finally, moving further into the core of the criminal justice system, work
requirements are ubiquitous conditions of parole, probation, and other forms of
community supervision. Unsurprisingly, Lawrence Mead is all over this, touting
community supervision as an existing institution that, like child support, has
extensive contact with and authority over men in low-income communities of
color. So Mead is advocating taking work programs developed in welfare-to-work,
transplanted to child-support enforcement, and now extending their reach using the
threat of incarceration from revocation of probation or parole. Strikingly, even
when liberals counter with robust, well-funded job creation programs, they still
accept the framework of mandatory programs backed up by incarceration, as we
see for instance in some of Bruce Western’s work.9
Thus, we may be witnessing the migration of the welfare-reform consensus of
the 90s, when the Democratic and Republication parties agreed on mandatory
employment programs and differed only with respect to their generosity and labor
standards. But while there the state acted by withdrawing its helping hand, here it
acts by striking with its clenched fist.
9
Bruce Western, Brookings Institution, From Prison to Work: A Proposal for a National
Prisoner Reentry Program, HAMILTON PROJECT (Dec. 2008).
9