LAND OF THE FREE, HOME OF THE INCARCERATED?

Racialized Mass-Incarceration and the Reproduction of Neoliberalism: Understanding Criminal Legal Policy as a Social Policy Concern.

Introduction

There is large body of literature discussing how neoliberalism is embedded within and reproduced through a range of social institutions (Federici 2019; Mezzadri 2019; Harvey 1982; Cahill 2014; Cammack 2020; Nunn and Tepe-Belfrage 2019; Fine and Saad- Filho 2016). Authors note that the state uses disciplinary projects to regulate and (re)produce a workforce that adheres to the demands set in favor of a given economic system (Nunn and Tepe-Belfrage 2019, 10). Social policy analyses often build on social reproduction theory to understand the impacts and outcomes of policy choices, in particular with regards to social (in)equality. However, despite the inherently disciplinary nature of the criminal legal system, and the importance of prisons as state apparatuses through which such discipline can be enacted, criminal legal policies are not typically considered as a form of economic regulation within conventional social policy literature (Zatz 2021). Further, analyses often take social inequality as something that is (re)produced through neoliberalism, rather than as an integral component of the reproduction of neoliberalism itself.

Focusing on racial inequality in the United States, this essay argues that anti-Black racism has been foundational to both the emergence and the reproduction of neoliberalism in the USA, and that the criminal legal system, particularly in the form of mass- incarceration, is a key mechanism through which both racialized class relations and neoliberalism are reproduced. It further advances the argument that social policy efforts aimed at redressing racial inequality in the USA should consider criminal legal reform and social welfare reform as interdependent mechanisms of social reproduction, and design social policy accordingly.

Anti-Black Racism and the Rise of Neoliberalism in the USA

There has been a global trend towards neoliberalism since the 1980s (Ostry, Loungani and Furceri 2016, 38). The process of neoliberalization is generally understood as characterized by the erosion of social welfare, increasing privatization and competition, deregulation of markets, and financialization (Fine and Saad-Filho 2016; Ostry, Loungani and Furceri 2016, 38).

In the USA, the neoliberalization project was driven in particular by the Reagan administration (Harvey 2005, 1), and had an unmistakably racialized dimension. When Jim Crow laws were abolished in 1965, Black communities were still in a poor socioeconomic position, often with few viable employment prospects. Despite the formal abolition of racial segregation, redlining and other racist practices continued to push Black people to the margins of the labor market, the economy, and US society as a whole (Krieger 2020; Brewer and Heitzeg 2008). Still, white Americans insisted that it was Black people’s own unwillingness or ineptitude that caused their joblessness and poor socioeconomic position (Giroux 2003).

In this context, the rhetoric of ‘personal responsibility’ became embedded within anti-Black racism to cultivate resentment of ‘welfare dependency’ and promote the switch from welfare to workfare (Gustafson 2011, 32). The degrading portrayal of Black women as ‘welfare queens’ was used to frame them as “recipients of state assistance intent on defrauding the welfare system” (Wamsley 2018, 6), and this framing was integral to the legitimization of the welfare-to-workfare reform. Against this backdrop, welfare funding was decentralized and eligibility for government assistance was drastically reduced for working-class households. The right to social assistance eroded drastically. Recipients were required to accept low-wage, low-skill jobs or participate in job training to remain eligible for social benefits, had to find employment within two years, and a lifetime cap of five years was introduced for government support (Wamsley 2018, 6-7). Thus, Wamsley (2018, 6) argues, “[...] racism – and the pathologization of Black women in particular [...] – ought to be conceptualized as ‘part and parcel of the neoliberal project’ in the US.”

Neoliberalism and Prisons as Disciplinary State Apparatuses

Economic systems are embedded within and reproduced through social institutions (Federici 2019; Mezzadri 2019; Harvey 1982; Cahill 2014; Cammack 2020; Nunn and Tepe-Belfrage 2019; Fine and Saad- Filho 2016). Cahill (2014, 64) argues that markets are always dependent on social support structures in order to function, and are as such always embedded in social relations. Social institutions, most centrally the state, thus play a crucial role in the formation and the reproduction of neoliberalism. Nunn and Tepe-Belfrage (2019, 10) note that in the past few decades, “[...] the state has expanded, deepened and tightened its control for reproducing the future workforce [...].” When individuals are judged as not supportive of the state’s objectives of aspiration in support of a particular economic system, they are subjected to disciplinary projects to regulate their behavior and push them into adhering to such objectives (Nunn and Tepe-Belfrage 2019, 10).

The disciplinary nature of the criminal legal system makes prisons important state apparatuses through which such projects can be enacted. Scherrer and Shah (2017, 39) argue that prisons serve as deterrents with the objective of disciplining: the prison “[...] is an expression of “social disapproval” towards groups with little success in the labour market.” Indeed, there has been a surge in incarceration rates — growing from 93 to 743 (per 100,000 of the population) between 1972- 2009 (Western and Muller 2013, 168) — and incarceration rates have reached astonishing levels at the margins of the labor market, among people (disproportionally men) with extremely poor employment prospects, in particular (Western, Kling and Weiman 2001). The US inmate population is not just disproportionally poor, but also disproportionally Black: in 2022, Black people made up only 13.4% of the total US population (United States Census Bureau n.d.), but 38.4% of the incarcerated population (Federal Bureau of Prisons n.d.). LeBaron (2012, 327) writes that “[...] prison labor regimes should be understood as part of a range of state strategies to aggressively impose the forms of labor and social discipline central to specific regimes of governance and accumulation.” As the rest of this essay will demonstrate, in the USA this regime of governance and accumulation is neoliberalism, and its aggressive imposition has been realized (in part) through racialized mass-incarceration.

Racism and Mass-Incarceration

Since 2002, the USA has had the highest per capita incarceration rates in the world (Scommegna 2012), and for-profit prison labor has become a multi-billion- dollar industry. However, mass-incarceration and for- profit labor have not been constant features of the US prison system. What has been constant, is their relationship with anti-Black racism. Until 1820, commercial prison labor was prohibited in the USA. Only after the emancipation of enslaved Black people did a contractual labor prison labor system, whereby prisoners were ‘rented out’ by prison operators to private actors, become common in the USA (Scherrer and Shah 2017, 34). This system effectively functioned as a substitute for slavery — and to sustain this supply of unpaid labor, the threshold for incarceration was lowered and prison sentences were extended (Scherrer and Shah 2017, 34-35). These prison labor renting practices temporarily came to an end with the 1960s civil rights movement, but criminal legal reforms throughout the 1970s and 1980s would gradually undo the civil rights movement’s work and make for-profit labor a common practice again (Thompson 2012). Before the mid-1970s, US incarceration rates had not differed drastically from the global average (Western and Muller 2013, 168). But the reintroduction of for- profit prison labor was now accompanied by mass- incarceration, produced by the ‘war on drugs’ and debt- to-prison pipeline.

The War On Drugs

Racial integration triggered fierce resistance from many white Americans, and tensions only grew when protests erupted in impoverished Black neighborhoods in response to the murder on Martin Luther King, Jr. (Scherrer and Shah 2017, 36). The rhetoric supporting Black people’s civil rights began to lose its appeal, and the conservative Republican strategy aimed at securing the traditional racial hierarchy between Black and white people regained popularity (Scherrer and Shah 2017, 36). When crime rates nearly doubled in major cities between 1965-1975, white Americans blamed Black people for this surge (Scherrer and Shah 2017, 36). This inspired the Nixon and Reagan administrations to promote a strict ‘law and order’ rhetoric emphasizing the ‘war on drugs’ and the incarceration of the ‘criminal underclass’ — this ‘criminal underclass’ being (poor) Black people (Scherrer and Shah 2017, 36).

While it is true that dealing drugs had become a source of economic opportunity in the absence of legal forms of employment in impoverished Black neighborhoods, Black youth were actually far less involved in (drug- related) crime at the height of the prison boom (2000s), than at its inception (Western and Wildeman 2009, 225). Rising incarceration rates thus were not reflective of rising crime rates, but rather of particular, racially biased, criminal legal policy choices. As part of the ‘war on drugs,’ the threshold for conviction and long-term incarceration for drug-related crimes was lowered (Western and Wildeman 2009, 225). But this was not an equal war: sentences for cocaine powder were far less severe than for crack cocaine, the latter of which was easier to produce and thus more common in impoverished Black communities (Scherrer and Shah 2017, 38). Police presence also increased disproportionally in Black neighborhoods (Zatz 2021, 220; Brewer and Heitzeg 2018, 637; Weitzer and Brunson 2015), making Black people more likely to get arrested, while racist biases within the judicial system made it significantly more likely for them to be convicted and sentenced (for a longer time) than white people for the same crimes (Rehavi and Starr 2014). The call for the policing and incarceration of the ‘criminal underclass’ thus specifically targeted (poor) Black people. As a result, incarceration rates among Black youth rose (and continued to rise) drastically even when actual crime rates did not (Western and Wildeman 2009, 225).

Such racist biases still underly the disproportional incarceration of Black people today. Research reveals that Black Americans are 127% more likely to get frisked and 76% more likely to get searched than white Americans (Sivin, Miller and Roche LLP 2017), yet these searches are less likely to uncover illegal drugs or weapons than searches of vehicles with white drivers (Andrews 2016). While the probability for a Black man to be incarcerated for a drug-related crime is 25 times higher than for a white man (Scherrer and Shah 2017, 38), white Americans are just as likely to sell drugs and actually more likely to use them (The Hamilton Project 2018). Yet, as of 2013, Black people comprised nearly 40% of those incarcerated for drug law violations (Drug Policy Alliance 2013). Importantly, there is also a greater likelihood of wrongful conviction and incarceration for Black people: findings indicate that while Black Americans are over 7 times more likely than white Americans to be imprisoned for murder, they account for half of all murder exonerations, and are 50% more likely to be innocent than other convicted murderers (Gross, Possley and Stephens 2017). This further indicates the role of racism in the mass- incarceration of Black people. Just as the increase in incarceration of Black people did not actually reflect an increase in crime among this demographic, their disproportionate incarceration likewise does not reflect a disproportionate participation in crime. Rather, both the surge in and scope of Black incarceration reflect a body of racist criminal legal policy choices.

The Debt-to-Prison Pipeline

While Republican ‘law-and-order propagandists’ targeted Black people in particular, their policies were linked to the turn towards neoliberalism more generally, according to Scherrer and Shah (2017, 37). As Black people in particular, and poor people more generally, were scrutinized through the prism of ‘personal responsibility’ and effectively blamed for their poor socioeconomic position, ‘disciplining’ them through state apparatuses, including prisons, became socially accepted and even demanded (Scherrer and Shah 2017, 44). Scherrer and Shah (2017, 38-39) thus hold that the expansion of criminal persecution is closely linked to the neoliberal cutbacks on social spending, and that mass-incarceration reveals a lack of alternative solutions to precarious socioeconomic conditions. Zatz (2012, 219) argues that the punitive nature of this reform is due to a changing social- democratic baseline, whereby it was no longer “[...] only wrongdoing [that] could strip someone of their [...] entitlement to “social rights” of livelihood [i.e., social welfare] and “civil rights” of personal liberty.”

Indeed, alongside the shift to workfarism emerged a debt-to-prison-pipeline. Workfare had negative impacts which, due to the racialized makeup of the working-class, especially harmed Black people and people of color (Davis and Shaylor 2001; Wamsley 2018; Zatz 2021). Workfare pushed recipients into low- wage, low-skill jobs with no security or benefits (health care; paid sick leave), and drastically reduced income levels (Wamsley 2018, 7). Low-income single mothers, especially Black and of color, were hurt the most by workfare policies (Davis and Shaylor 2001). Ahn (2015, 14) found that “[...] while low-income single mothers were working more after welfare reform, their net disposable income decreased [...] because their earnings were low and offset by an increase in childcare costs and a decline in means-tested benefits [...].” Overall, precarity and poverty increased dramatically with the shift from welfare to workfare, especially among already poor families (Ahn 2015, 14-15; Wamsley 2018; Roberts 2013).

This created the conditions for debt-dependency in the USA, according to Wamsley (2018, 9). He argues that the marketization of social support systems and the decrease in real worker compensation destabilized the traditional means of social reproduction, and created the conditions which gave rise to consumer credit, the structural necessity of debt, and, subsequently, substantial personal indebtedness.

Black communities were uniquely affected by the expansion of debt under neoliberalization. Wamsley (2018, 11) notes that “[t]hose at the bottom of the racialized class hierarchy in the US face the greatest pressures to increase their debt loads in order to sustain living standards” — and, as a result of racialized socioeconomic marginalization, those at the bottom of this hierarchy are typically poor and Black. As a result of ‘bad credit’ and racist biases, high-risk and high-cost debts were unevenly accumulated along racial lines, which reproduced intergenerational poverty within Black communities (Wamsley 2018, 9; Roberts 2013) Here too, the rhetoric of ‘personal responsibility’ maintains a pseudo-colorblindness that “[...] obfuscates the racialized practices of predatory lending and shifts the blame of financial precariousness onto subprime and high-risk borrowers [...]” (Wamsley 2018, 9). In spite of this rhetoric, data indicates that those at the bottom of the racialized class hierarchy paid the most usurious interest rates to higher-cost sources of credit. As a result, Black homeowners were 500% more likely than white homeowners to find themselves bankrupt as of 2018 (Wamsley 2018, 11).

Yet, legal changes made it significantly more difficult for debtors to file for bankruptcy (Wamsley 2018, 10), which had detrimental implications when debt-based incarceration became an increasingly common phenomenon. Wamsley describes how large firms buy portfolios of delinquent consumer debt. Using ‘in personam remedies,’ debtors are then summoned to court to assist these creditors in debt-collection (Wamsley 2018, 12). Due to a range of factors, including precarious financial circumstances, debtors often fail to appear in court, leading judges to rule overwhelmingly in favor of creditors (Wamsley 2018, 12). If debtors then fail to attend their post-judgement hearings or to make their mandatory payments, they can be imprisoned for contempt of court or for ‘willful refusal to pay’ (2018, 12). However, even if they do show up to court, a favorable judgement is extremely unlikely: reports suggest that over 95% of such collection cases are ruled in favor of the creditor (2018, 12). While this debt-to-prison pipeline harmed poor people irrespective of race, due to the type of accumulated debt and anti-Black racism both on the labor market and in the judicial system, it has contributed to the mass-incarceration of (poor) Black people in particular.

LFOs and (Re)incarceration

Legal financial obligations (LFOs) have emerged at all levels of the criminal legal system over the past few decades. LFOs may be fines, fees, or surcharges, and can be imposed on all charges, from misdemeanors to felonies (Wamsley 2018, 13). With Black people being more likely to get charged, they are thus by extension more likely to have to pay LFOs — which are imposed in highly discretionary ways and have deepened and reinforced racialized class inequalities (2018, 14). Moreover, in 2018, all but two states permitted incarceration for failure to pay LFO-based debts — which grow rapidly due to usurious interest rates charged on these debts (2018, 14). Logically, paying off these LFO-based debts is more difficult for low-income Black people, and the racialized accumulation of debt has only worsened their socioeconomic position. As a result, Black people are also disproportionally likely to face (re)incarceration as a result of failure to pay their LFO-based debts (Wamsley 2018, 14).

Reproducing Racial Inequality: The Impacts of Incarceration

Not only are low-income Black people disproportionally likely to be incarcerated, but their poor socioeconomic position is also reproduced through incarceration. Firstly, inmates on average earn USD$0.64 per hour, and in some states, they are not paid at all (Thompson 2012; Wagner and Rabuy 2017). This dramatically limits their ability to build up any savings while incarcerated – especially as this income is mostly spent on commissary items and phone calls (Wagner and Rabuy 2017).

Secondly, being incarcerated at a younger age (18-30), which is common for Black men in particular, limits vital opportunities for personal development during this life phase, such as pursuing higher educationi, gaining work experience, and building a strong social support network (Browning, Miller and Spruance 2001). This deprives them of an important form of ‘social capital’ which is instrumental to their ability to improve their socioeconomic position and that of their family or community (Nunn and Tepe-Belfrage 2019).

Thirdly, most inmates already enter prison with severe mental health issues, which are often worsened by incarceration as they are exposed to (even more) (sexual) violence, social isolation, lack of privacy, and relational insecurity while in prison (Armour 2012; Wildeman and Wang 2017; Miller and Najavits 2012). At the same time, rehabilitation mechanisms (therapy; clean and safe living conditions) are often absent (Armour 2012). These hostile living conditions and the lack of adequate rehabilitation mechanisms are linked to a vicious cycle of recidivism and (re)incarceration (Miller and Najavits 2012; Mamun et al. 2020).

Post-Incarceration Impacts

The end of one’s prison sentence does not mark an end to the impact thereof. Convicts are less likely to get hired than non-convicts (Browning, Miller and Spruance 2001; Western, Kling and Weiman 2001), and Black convicts are less likely to get hired than white convicts (Roberts 2004, 1293). Former inmates thus often find themselves with no savings, no higher education, and few viable employment opportunities as mass-incarceration has exacerbated unemployment in Black communities (Roberts 2004, 1293). In this context, LFOs, combined with racism on the labor market and in the judicial system, can create a cycle of reincarceration among Black convicts, as LFO-based debts are not forgiven during incarceration and failure to pay them can lead to reincarceration (Wamsley 2018, 14). Incarceration thus not only limits the opportunities convicts have in life, but the limitation of those opportunities may in turn be the very reason for reincarceration.

Incarceration and Community

Incarceration affects entire communities. Black prisoners’ families and social networks (especially women) often shoulder greater unpaid care labor as a result of the incarceration of (often male) relatives or partners (Massaro 2020). Black mothers are particularly likely to suffer (mental) health and financial issues because of the sudden removal of their partner from their relationship, the maintenance of the household, and the upbringing of their child(ren) (Browning, Miller and Spruance 2001; Wildeman and Wang 2017). Staying in touch with an incarcerated person can be time-consuming and costly, as there is little consideration of the distance of an inmate’s social network in deciding where they should be incarcerated. Oftentimes, their social network has to travel long distances to visit them in prison, and rely on in-prison phone calls to stay in touch (Hattery and Smith 2014). These are valuable hours that could have been invested in their career, family, and education. In-prison phone calls are also expensive because of for-profit charges: a prison can earn USD$15.000 in annual profits from just one phone placed inside that prison (Browning, Miller and Spruance 2001, 93).

Mass-incarceration has also drastically increased the number of one-parent Black households. Research shows that poverty is more prevalent among one- parent families than any other type of family (Kramer et al. 2016, 23). This is a gendered phenomenon: while more than 1/3 single mother households were below the poverty line at the turn of the century, this was less than 1/6 for single father households (Kramer et al. 2016, 23). As a significantly larger share of Black men is incarcerated than Black women, mass-incarceration has thus deepened the economic vulnerability of Black households.

Resultantly, parental incarceration has negative socioeconomic effects on their children, too. Poverty limits parents’ ability to provide opportunities for their children — especially in the absence of social welfare. Children living in single parent households often suffer psychologically, academically, and are more disadvantaged due to financial stress and poverty (Kramer et al. 2016, 39; Roberts 2012, 1481). Further, there is widespread support from existing research that “[...] the acquisition and transfer of social and cultural capital from parents to children is significant in shaping life chances [...]” (Nunn and Tepe-Belfrage 2019, 6). Because incarceration reduces a (formerly) incarcerated person’s ability to acquire social and cultural capital, this resultantly limits the capital they are able to transfer to their own children.

Paternal incarceration also increases the risk of child homelessness: “[...] the prison boom was likely a key driver of the growing racial disparities in child homelessness, increasing black-white inequality in this risk by 65% since the 1970s” (Wildeman 2014, 74). This development was also partly driven by increases in economic hardship and decreases in institutional support (i.e., social welfare) (Wildeman 2014, 74). Further, when the convicted and/or incarcerated parent is a child’s only (available) legal guardian, they may be placed in foster care, which is known to have negative impacts on a child’s economic, educational, and social development (Browning, Miller and Spruance 2001). This is a common scenario for Black women in particular, who are often their child’s primary caretaker. At the time of Roberts’ (2012, 1477) research, approximately 1/3rd of incarcerated women was Black, and most were their children’s primary caretaker. Correspondingly, about 1/3rd of children in foster care was Black, and most had been removed from Black mothers as their primary caretakers.

Having an incarcerated parent also has negative mental health effects on children, who tend to experience serious emotional and behavioral problems that are linked to underperformance at school and a greater likelihood of entering the juvenile system before their 18th birthday (Browning, Miller and Spruance 2001, 92; Wildeman and Wang 2017). In 2013, one in nine Black children had an incarcerated parent, compared to one in 57 white children (Drug Policy Alliance 2013). This means that Black children, like their parents, are disproportionally affected by incarceration, and more vulnerable to being incarcerated themselves as a result.

Finally, historically speaking, kinship networks have been vital for the survival of Black communities in the USA, as existing institutions served the purpose of racial oppression rather than social support (Roberts 2012, 1479). The post-segregation period during which public spending provided some source of survival to Black families was, as noted, short-lived. Social networks thus remain vital for poor Black families, yet mass- incarceration “[...] strains the extended networks of kin and friends that have traditionally sustained poor African-American families in difficult times, thereby weakening communities’ abilities to withstand economic and social hardship” (Roberts 2012, 1480- 81). Thus, the effects of racialized mass-incarceration harm the socioeconomic position of entire households and communities (Wildeman and Wang 2017, 1466).

Incarceration and Neoliberalism

Davis and Shaylor (2001, 2) argue that imprisonment has become the most self-evident response to social problems previously addressed by the social programs that were curtailed under neoliberalism. Rather than investing in socioeconomically vulnerable communities and resolving issues of poverty, debt, and unemployment, these ‘undesirable’ classes are simply removed from society. The state thus does not address these socioeconomic struggles, but actually weaponizes them against these communities to justify their conviction and incarceration — which have become sources of state revenue.

There are two types of prisons in the USA: public (state- owned) prisons, and private (corporation-owned) prisons. While public prisons are state-owned, certain services provided in these prisons are still outsourced to private companies. Seeing that the private companies providing commissary and telephone services for public prisons share a portion of the revenue with the government, “[...] contracts are awarded not on the basis of the best price and service to the consumer, but on the size of the revenue that is paid to the government authority that awards the monopoly contract” (Wagner and Rabuy 2017).

State revenue is also generated through prison labor. UNICOR is a state-owned corporation that operated 83 factories and employed over 1200 inmates in 2015 (Hammad 2019, 79). Inmates working under UNICOR produce items that can be used by the government itself (such as signage or license plates) (Corlette 2022), or sold for profit to offset costs that would have otherwise been paid through taxation and other appropriated funds (Hammad 2019, 79; Pierson, Price and Coleman 2014, 13; Corlette 2022). Prison industries can generate significant revenue. The existence of prison industries in Ohio, for example, added between USD$2.8-USD$4.9 million to annual (local) government revenues in 2006 (Scott and Derrick 2006, 547).

Finally, LFOs have also become a vital alternative source of revenue for municipal governments as neoliberalization resulted in drastic tax-breaks and budget-cuts (Wamsley 2018, 14). As of today, counties collect between 10%-40% of their annual revenue from court fines and LFOs (Corlette 2022). Thus, increased criminal persecution and incarceration are not just alternative “solutions” to problems previously addressed by social welfare, but also sources of revenue that compensate for tax-breaks and budget- cuts in public spending.

Private Prisons

During the prison boom, the state had insufficient space to house the rapidly growing inmate population, and paid “[...] private companies a fee for each inmate in exchange for those companies bearing the costs of building correctional and detention facilities, housing inmates [...] and managing all other day-to-day functions” (Hammad 2019, 79). Subsequently, the inmate population incarcerated in for-profit, private- owned prisons increased sixteen-fold between 1990- 2009 (Mamun et al. 2020, 4500). This arrangement lowered the costs of incarceration for the government, and generated profit for the private companies that were paid by the state to provide these correctional services. Moreover, private companies were now able to use un(der)paid prison labor to produce items that could be sold for profit. The two largest private prisons are CoreCivic and the Geo Group, which combined operated 130+ prisons and accumulated over USD$4 billion in annual revenue in 2019 (Hammad 2019, 79). In 2018, CoreCivic made an average USD$3000 profit per inmate — while inmates themselves were paid less than USD$1 per day (Sliva and Samimi 2018, 156-57). Thus, in addition to the state, private prison companies are the main beneficiaries of this multi-billion-dollar prison labor industry.

At least 65% of the contracts between for-profit prison companies and governmental bodies include occupancy clauses, or ‘lockup quotas’ (Sliva and Samimi 2018, 156; Hammad 2019, 80-81). Such occupancy clauses can range from 80%-100%, and obligate the government to supply a minimum number of inmates (Sliva and Samimi 2018, 156; Hammad 2019, 80). If, at any time, occupancy falls below the agreed percentage, the state must financially compensate these prisons (Hammad 2019, 80). This rarely happens, however. By threatening people with long prison sentences if they go to trial, the government ensures that over 90% of criminal cases end in plea deals (Hammad 2019, 80-81). And as plea deals save the government time and money, meeting lockup quotas is actually in the government’s benefit, too (Hammad 2019, 80-81). Additionally, the government also benefits from the millions spent by private prison companies in political contributions and lobbying efforts to shape legislation that extends sentences and increases their revenue (Hammad 2019, 80-81; Sliva and Samimi 2018, 156).

The Prison Industrial Complex

Davis coined the term ‘Prison Industrial Complex’ (PIC) to describe this “profit-driven relationship between the government and big business, where imprisonment is seen as the solution to economic and sociopolitical problems and a means to obtain free labor” (Panteledes 2021). Like Davis, Brewer and Heitzeg (2008, 636-37) argue that the PIC is a rearticulation of the political economy of late capitalism, as Black working-class people are less needed in the free labor market under the current conditions of capitalist globalization. In the never-ending search for cheaper labor and profit maximization, “[c]ompanies that service the criminal justice system need sufficient quantities of raw materials to guarantee long term growth [...] [and] [t]he industry will do what it must to guarantee a steady supply” (Brewer and Heitzeg 2018, 637). To guarantee a steady supply of ‘raw material’ (i.e., prisoners), criminal legal policies must produce a sufficient number of prisoners irrespective of crime rates (Brewer and Heitzeg 2018, 637). Brewer and Heitzeg (2018, 637) thus argue that: “[The PIC] is a self-perpetuating machine where the vast profits (e.g., cheap labor [...] ) and perceived political benefits (e.g., reduced unemployment rates, “get tough on crime” and public safety rhetoric [...] ) lead to policies that are additionally designed to ensure an endless supply of “clients” for the criminal justice system (e.g., [...] racial profiling; decreased funding for public education combined with [...] increased [...] expulsion for students of color; increased rates of adult certification for juvenile offenders; mandatory minimum and three-strikes sentencing; draconian conditions of incarceration [...] that contribute to the likelihood of recidivism; [...]).”

Incarceration and Neoliberalism

To recapitulate, racialized mass-incarceration fulfills several important functions for the reproduction of neoliberalism: (1) it is a source of state revenue that compensates for tax-breaks and budget-cuts; (2) incarceration has become a ‘solution’ to the problems that would have been addressed by social welfare programs (such as poverty, unemployment, debt), thereby allowing the privatization of social welfare; (3) incarceration facilitates the constant supply of cheap or unpaid labor needed for economic growth under neoliberalism; (4) prisons function as sites of social reproduction, allowing aggressive labor disciplining by the state, removing ‘undesirable’ workers from society and making them ‘profitable’ to the state through prison labor.

Social Policy Implications This essay has tried to highlight the interrelationship between criminal legal policy and social policy, and demonstrate that racial inequality should be seen as an integral part of the formation of neoliberal social policies, and not just as an (exacerbated) outcome thereof. When placed in the context of criminal legal reform and racialized mass-incarceration, it is evident that increased racial inequality and socioeconomic marginalization were not an unintended byproduct of neoliberal policies, but in fact foundational thereto. By illustrating the relationship between socioeconomic marginalization and mass-incarceration, and the role of the latter in reproducing neoliberalism, this essay thus suggests that racial inequality is foundational to the reproduction of neoliberalism itself. This means that social policy aimed at redressing racial inequality in the US should be cognizant of this racialized foundation, and conceive of criminal legal policy both as a form of economic regulation and as a mechanism of racialized socioeconomic marginalization that is interrelated with social policy.

A few implications can be deduced from this. Firstly, when a racialized community is significantly and disproportionally harmed by the impacts of incarceration, this implies that addressing these specific impacts is an important component of social policy efforts towards reducing racial inequality. For families affected by the incarceration, access to mental health care (especially for children of incarcerated parents), free or affordable daycare (as incarceration increases single parenthood), and affordable education could help curb the harmful, cyclical effects of incarceration.

It also suggests a need to reform the social policies contributing to incarceration itself. Besides facilitating their ability to acquire social capital and improve their socioeconomic position, reversing the shift to workfarism could be a first step towards undoing the harmful effects that contributed to racialized mass- incarceration in the first place (i.e., poverty and debt), while reintroducing extensive social welfare programs could help prevent incarceration by making viable, legal forms of employment more accessible to those who may have otherwise resorted to crime as a source of income. While a robust welfare system helps prevent indebtedness, debt-counseling programs are also needed to help people in the process of paying off their already existing debts — thereby preventing debt- based incarceration. However, putting a halt to debt- based incarceration also requires criminal legal policy changes that make LFOs income-based, that strip them of usurious interest rates, and that significantly alter the conditions for debt-based incarceration and the legal process leading up to this.

Moreover, while social welfare can considerably improve the livelihoods of many Black people and thereby reduce racial inequality, it cannot resolve racial inequality under the conditions of structural racism and racialized exploitation. Social policy reform may have the potential of resolving poverty, unemployment, and debt — all important factors contributing to racialized mass-incarceration — but social policy alone cannot put a halt to the reproduction of racial inequality through mass-incarceration if the threshold for incarceration moves to meet occupancy quotas, rather than society’s needs. Establishing a certain baseline of social welfare will also be an insufficient solution if it does not apply within prisons; prisoners need access to adequate mental health care, education, and humane living conditions in order to prevent recidivism and allow them to acquire the social capital needed to improve their socioeconomic position after release. Yet, even if this social welfare baseline is ensured within prisons, this does not undo the driving force behind the PIC, namely labor exploitation, as long as state and private actors remain able to pay inmates slave-wages for the labor off of which they make billions worth of profits.

In other words: without criminal legal reform, social policy reform is a solution incomplete, because economic regulation does not stop where courts and prison walls begin. It is imperative that social policy analysts, in their aim to reduce racial inequality, recognize that criminal legal policy works in tandem with social policy, and that efforts to reform the latter must include efforts to reform the former. Recognizing the foundation of racism on which the interrelationship between social policy and criminal legal policy is built, is necessary both to recognize the limits of social policy in preventing the reproduction of exploitative racialized class relations, and to recognize the opportunities to inhibit the racialized marginalization (re)produced by the criminal system through counteractive social policy design.