A New Peonage?: Debt Enforcement As Labor Regulation in the Era of Precarious Work in Preparation for Noah Zatz [email protected]
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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 low- wage 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 mid- century, 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.