Late in the evening of May 28, 2020, President Trump fired off his now infamous tweet announcing “when the looting starts, the shooting starts.” Criminologist Barry Latzer later insisted in The Wall Street Journal that looters aren’t protesters with legitimate grievances—they’re criminals who, in the words of political scientist Edward Banfield, an intellectual forbearer of broken windows policing, are “in it for fun and profit.” That same day, The Wall Street Journal’s editorial board tut-tutted about poor people destroying their own communities and mocked “intellectuals” who, like Martin Luther King Jr., view rioting and looting as “merely the persuasive language of the unheard.”
We heard similar condemnations in 2014 when, after a grand jury failed to indict officer Darren Wilson for killing Michael Brown, angry protests in Ferguson, MO, spilled into looting incidents. The bitter irony of this public scolding was soon revealed by a U.S. Department of Justice report that showed in fine-grained detail how the city of Ferguson had been operating a predatory system of government. Police there were street-level enforcers for a program that used fines and fees to, in a word, loot resources from poor communities of color and deliver them to municipal coffers.
The concept of predation helps us understand U.S. extractive criminal-legal operations in relation to the long history of expropriation and dispossession that includes, for example, chattel slavery, the taking of Native lands, and various forms of colonialism. It also helps us locate these practices within a broader complex of predatory operations; payday lenders, subprime mortgage and auto loans, high-interest credit card scams, and other enterprises similarly target RCS communities with business models designed to produce debt and trap people in ceaseless payments.
Criminal-legal predation isn’t new. Laws, courts, police, and penal institutions have facilitated projects of dispossession for centuries. Through most of this history, however, criminal codes and law enforcement have mainly supported labor extraction, as in the cases of slave patrols, convict leasing, and prison industries. Although labor predation continues, the scope and character of criminal justice predation has changed such that financial extraction has become far more common and lucrative. Especially since the late 1980s, financial takings have become a prominent feature of the criminal-legal field, siphoning billions of dollars from millions of legally entangled persons and their families.
Police stand at the frontlines of this massive operation. In RCS communities across the country, as in Ferguson, the police stop and fine people as they drive, bike, walk, or otherwise go about their normal business. Using asset forfeiture laws, they dispossess people of money and goods based on nothing more than an allegation that something they own has illicit origins. Asset forfeiture, justified as a necessary weapon in the “wars” on drugs and terror, has soared, often funding government agencies’ continued predation, mostly through small takings from poor and working-class people.
When police make arrests, they usher people into other extractive institutions, beginning with the courts. As sociologist Alexes Harris shows in A Pound of Flesh, defendants are charged a host of fees for “using” court services. Approximately 43 states and the District of Columbia allow courts to charge indigent defendants for their own legal representation, many requiring application fees to access a public defender. Some states charge defendants extra fees to exercise their right to a jury trial. The courts tack on an array of “surcharges,” which typically have little or no direct connection to defendants’ alleged actions, to fund legal and non-legal government operations (e.g., education).
For many defendants, court involvement leads to costly entanglements with the commercial bail industry. In this system, defendants who can’t afford to pay their bail turn to businesses that charge non-refundable premiums (typically 10% of the bail) to get them out. Since the early 1990s, in conjunction with tough-on-crime politics, bail amounts have skyrocketed, pushing defendants’ dependency on bail bonds.
The amount of money that flows from RCS communities to bail companies (and the corporate sureties that underwrite their bonds) is unknown. Unlike government agencies, bail companies may keep their finances secret. A 2016 study by the Maryland Office of the Public Defender, however, suggests the amount is massive. The Office reported that bail companies “extract tens of millions of dollars from Maryland’s poorest zip codes, contributing to the perpetuation of poverty.... The money bail system has a disproportionate impact on racial minorities: over five years, black defendants were charged premiums of at least $181 million, while defendants of all other races combined were charged $75 million.”
Incarceration results in exposure to another wide array of revenue-generating schemes. Prison-management contracts alone represent a $5 billion industry, with additional revenues for detention in the areas of immigration and asylum seeking.
But it isn’t just private penal facilities that prey on the poor. Today, every state except Hawaii and the District of Columbia allows public prisons (and jails) to defray costs by charging prisoners pay-to-stay fees—room and board, for instance, as well as medical care, clothing, and basic needs such as menstrual pads.
Revenue-starved state authorities further commodify the human bodies they control in carceral facilities by selling extraction rights. Contracts for access allow firms to exploit prisoners, first, as underpaid labor and, second (and more deeply) as a captive market for overpriced goods. Consider prison phone calls. Capitalizing on prisoners’ efforts to maintain connections, the Telecoms earn roughly $1.6 billion a year on per-minute prison phone calls, a portion of which they give to government partners; in 2013, they doled out about $460 million in commissions.
Outside prisons, public officials retrofit community supervision as an extractive operation. From 1990 to 2014, for example, the number of states charging people for their own probation and parole supervision rose from 26 to 44. For-profit probation companies now operate in several states, while other businesses make money by furnishing governments with supervision technologies such as electronic monitoring bracelets. As Noah Zatz and colleagues show, some courts mandate community service for criminal-legal debtors, which “functions as a system of unregulated and coercive labor.”
Criminal-legal institutions also play an important role in extractive relations by coercing payments for debts that do not arise from matters of crime and punishment. Police and courts act as backstops and enforcers for debts owed to government (e.g., child support) and private companies—healthcare providers and landlords, along with more distinctly predatory payday lenders, credit card companies, and auto and home-mortgage lenders.
Criminal justice predation reinforces social inequalities as it generates public and private revenue. In an analysis of asset forfeiture, the Southern Poverty Law Center rightly concludes: “there has been a massive transfer of wealth and assets from American citizens—and especially the most economically vulnerable—to police, who can largely use the funds however they see fit.” “The burden falls most heavily on communities of color and low-income communities,” the ACLU reports in a study of asset forfeiture in California, and the benefits flow upward to people and institutions higher in the social order. The same can be said of all the extractive practices that have spread across the criminal-legal field since the late 1980s.
For people of means, predatory practices may be frustrating and, in the extreme, put a crimp in their lifestyle. For people living paycheck-to-paycheck, these practices are not only more common, but more often sources of hardships and crises. Sociologists Katherine Beckett and Alexes Harris explain that even “‘small’ payments of, for example, $50 a month can consume a significant share of defendants’ monthly income.” A single asset forfeiture, the ACLU argues, can “strip people of money needed for rent, medicine, child care or other expenses, or cars required to get to school or work.”
Criminal-legal debt forces people into increasingly difficult choices, such as forgoing necessities like food, rent, and medical care. They do so because nonpayment has serious repercussions: courts, collections agencies, and bail bond companies tack on additional charges, pushing debtors deeper into the red. And, as the ACLU explains, nonpayment “can damage credit scores and directly compromise access to credit, rental housing, mortgages, automobiles, and employment. They can lead to civil judgments that result in liens, wage garnishment, and tax rebate interception.” For those on probation and parole, failure to pay can result in losing public benefits. Delinquent debtors risk losing their driver’s license or getting locked up, either of which could result in loss of employment or wages. And in many states, people with outstanding legal debt cannot vote (in Florida, the fight over debt-based disenfranchisement has recently reignited).
The primary targets of criminal-legal predation are, in many respects, the families and friends of justice-involved individuals—particularly women. Mary Katzenstein and Maureen Waller argue that such practices operate as a form of “cash extraction that draws on ties of family dependency within the poorest stratum of American society.” In the cases of commercial bail and prison profiteering, for example, businesses directly target defendants’ and prisoners’ loved ones—most often mothers, grandmothers, and romantic partners—to maximize profits.
Criminal-legal predation is particularly harmful for low-income women of color, especially Black women, as a study by Alabama Appleseed underscores: “While other Alabamians are saving for retirement, paying off mortgages, and helping their children with payments for higher education and other expenses, African-American women with no criminal histories are paying other people’s court debt.”
Criminal-legal debtors frequently suffer psychological and emotional strain. In interviews, many express fatalism and fear, as if they’re haunted by a specter of future disaster. Debtors feel the full weight of the state, threatening to knock at (or perhaps knock down) their doors, upend their lives, and take them away. The haunting is especially fraught for Black Americans, who have endured racialized state violence for centuries. They know, first-hand, how quickly interactions with the police can turn deadly.
As recent protests evidence, predatory criminal justice practices also fuel anger at government, especially the police that govern RCS communities. Many Black, Indigenous, and people of color feel that the police view them not as equal citizens deserving of safety and justice, but as subjects to control and groups to strip-mine for dollars. We hear this sentiment from Valerie Castile, mother of Philando Castile, a young Black Minnesotan killed by police in 2016. In the 14 years before his death, the police had stopped Castile at least 46 times, leaving him with thousands of dollars in fines and fees. Speaking at a recent remembrance, Ms. Castile said:
…And I told my son once before he had got murdered, “These people ain’t even looking at you like a man, they looking at you as revenue… Because every time they stop you, they are going to give you a ticket, they are going to tow your car, so that ain’t nothing but money.”
The anger Castile expresses is made all the worse when people who benefit from systematic, state-sanctioned plunder ignore or discount the harm it causes—and instead decry far smaller and more episodic forms of looting without bothering to ask why people in RCS communities are so enraged and desperate in the first place.