Better Than Jail: Social Policy in the Shadow of Racialized Mass Incarceration

Author(s): Zatz, Noah D. | Abstract: Racialized mass incarceration enables forms of economic exploitation that evade traditional worker protections despite being integrated into conventional labor markets. Such exploitation is legitimated by normalizing incarceration as the baseline against which these practices are judged. In contrast, conventional social policy imagines an “economy” separate from state violence, opposing “free labor” to “involuntary servitude.” The emergent “carceral baseline” recharacterizes labor practices as subjects of criminal justice policy, not economic regulation, especially in “alternatives to incarceration.” Examples of this baseline’s deployment are drawn from regulation of child support work programs, Thirteenth Amendment challenges to community service “working off” criminal legal debts, minimum wage claims by workers in diversion programs, and legislative proposals to exclude formerly incarcerated workers from labor protections. Implications include the need to integrate insights from theories of nonmarket work and of racial capitalism that challenge the dominance of markets as objects of description and critique in law and political economy analysis.