The criminalization of poverty has become a sadly familiar topic. Largely overlooked, however, has been the related criminalization of unemployment.
In the past, unemployment was criminalized under the rubric of vagrancy prosecutions and related forms of racially-targeted labor control. Today, such practices have returned in new forms. In several contexts people face jail time if they do not work to the government’s satisfaction. How this happens is explored in “Get To Work or Go To Jail,” a report I recently coauthored with colleagues at the UCLA Labor Center and A New Way of Life Reentry Project. In many ways, these work requirements parallel the more familiar ones in public benefits programs, where people risk losing income support if they do not work enough.
The most straightforward examples come from probation, parole, and other forms of criminal justice supervision that operate outside the confines of prison. As Yale Law School professor Fiona Doherty has been documenting, work requirements are a pervasive feature of these systems. Failure to work can violate the terms of supervision—and create a path back to jail. On any given day, some 9,000 Americans are behind bars for violating probation or parole requirements to have a job.
As with work (or work search) requirements in aid programs such as Unemployment Insurance, the Supplemental Nutrition Assistance Program (SNAP, formerly Food Stamps), and Temporary Assistance for Needy Families (TANF), an essential question is always whether lack of work is voluntary or involuntary. In practice, this is a question of labor standards: Which jobs should someone be allowed to reject? Those that pay below the prevailing wage? Have erratic schedules incompatible with childcare? Subject workers to retaliation for organizing?
The function of enforceable work requirements is to get people to take jobs they otherwise wouldn’t, and to set up a system of surveillance to ensure that they do. And this is exactly what happens. For example, a recent study of Texas’s much-touted Noncustodial Parent Choices program found that work requirements enforced by the threat of jail caused employment to increase but wages to decrease. A study of Wisconsin welfare reform found similar downward pressure on earnings.
An even stronger analogy to work requirements in aid programs comes from court-ordered debts, such as child support obligations and criminal justice fines and fees. At the center of the modern debtors’ prison conversation, these debts are deeply linked to labor. The connection arises from the same simple question at the heart of income support programs: Why don’t you have more money? For means-tested benefits, lacking income is why the government gives you money as assistance. For court-ordered debt, lacking income is why you don’t have to give money to the government: the Constitution forbids imprisoning those who simply are unable to pay their debts. But in both contexts, the suspicion arises that lack of income is “voluntary” if additional earnings could be generated by working more. Notably, that suspicion is thoroughly shaped by racial stereotyping.
Take child support enforcement, for example. State agencies’ collection efforts begin by scrutinizing non-custodial parents’ inability to pay and end by scrutinizing their inability to work. Most states construe child support obligations as a duty to earn enough to pay. As a result, a penniless parent can end up behind bars if, as the Supreme Court of California explained, that parent “fails or refuses to seek and accept available employment for which the parent is suited by virtue of education, experience, and physical ability.” The courts consistently have upheld incarceration for nonwork in the child support context, despite the striking similarities to Jim Crow-era debt peonage practices that the Supreme Court long ago struck down as unconstitutional involuntary servitude. These similarities include shocking disparities of race and class, with African-American fathers ten times more likely than other fathers to be jailed for child support.
Detecting voluntary unemployment is notoriously difficult. The more you distrust those who say they cannot find jobs, the more tempting it is to surveil them. That is one legacy of persistent racial stereotypes concerning labor discipline. This sort of surveillance is a crucial function of employment programs, even when they are bundled with services, which often have dubious value. When participation in employment programs is mandatory, they generally are designed to push people to accept jobs they can already find, or to blame them for not finding any—not to improve their employment prospects in a meaningful way. That framework is explicit in the Obama Administration’s recently proposed child-support regulations, which promote “rapid labor force attachment” and reject “services to promote access to better jobs and careers.” While better than simply locking up noncustodial parents who can’t afford to pay, this “work first” model returns us to the questions of labor standards and diminished bargaining power.
When no jobs are available, the next step is to create a degraded tier of second-class work. Unpaid “workfare” or “work experience” programs have served that function in the years since 1990s welfare reform. Today, we see something similar happening with criminal justice debt. Mandatory “community service” may seem enlightened compared to throwing unemployed people in jail. Similarly, “offering” workfare is arguably better than simply terminating benefits for lack of work, as occurs under SNAP’s harsh “able-bodied adults without dependents” work rules that can cut off assistance even when no work is available.
Thus, a widely touted progressive reform when it comes to court-ordered debts is to offer unpaid community service as an alternative to debtors’ prison. This policy already is in place in Los Angeles, where every year an estimated 100,000 people are ordered to work for free or go to jail. By labeling it “community service,” the authorities attempt to shield this unpaid work from labor and employment protections such as the minimum wage and workers’ compensation for job-related injury. A federal judge upheld a similar policy in a recent New York case.
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As with workfare, these forced labor programs are triply unfair. First, they extract valuable work from citizens while stripping them of fair treatment and respect. Second, they perpetuate an unjust definition of voluntary unemployment. The proper test for willingness to work is willingness to work at a minimally decent job, not willingness to work for free without labor protections. Third, by creating a class of unprotected, coerced labor, they undermine the labor market for everyone. Employers have every incentive to substitute this new labor force for ordinary employees, or to extract concessions from workers by threatening to replace them. New York City did both under Mayor Rudy Giuliani, who cut unionized public sector jobs while turning to a massive workfare program to maintain services.
Welfare reform taught antipoverty advocates to take low-wage work and unemployment seriously. Today, we must take that line of thinking one step further to include racialized mass incarceration, not just as a barrier to good jobs but as an enforcer of bad ones.