Katherine Beckett, a Professor of Sociology at the University of Washington, came to New York University School of Law on Monday, April 23, 2012 to deliver the final Hoffinger lecture of the academic year. Her talk, entitled “Mapping the Shadow Carceral State: Toward an Institutionally Capacious Approach to Punishment,” outlined the proliferation of new kinds of, and pathways to, punishment in America.
For years, criminal justice scholars and practitioners have shone a light on mass incarceration. The United States now incarcerates more people per capita than any other nation in the world. Beckett argues, however, that if we are to fully understand the nature and power of the carceral state, we must look in the shadows. There she and co-author Naomi Murakawa have found a carceral state that uses civil and administrative mechanisms that lead to sanctions that mimic criminal punishment and/or create pathways to it. These civil and administrative pathways include the compulsory detention of immigrants and asylum-seekers, parole and probation revocation, the indefinite civil confinement of sex offenders, the use of civil contempt charges to jail debtors, and civil social control techniques developed and employed at the local level. Beckett and Murakawa use the term “shadow carceral state” to refer to these developments because they are often invisible, but nonetheless lead to the expansion of the carceral state.
Detention for noncriminal immigrants has grown dramatically over the last several years. In recent years, the U.S. Immigration and Customs Enforcement (ICE) has detained roughly 400,000 alleged immigration law violators each year. Even though the government claims that the detentions are not punitive, Beckett emphasized that the detainees are incarcerated in jails or prison-like conditions. But because the legal process is defined as administrative rather than criminal, legal subjects possess comparatively weak procedural protections.
In the correctional system, Beckett has found the same pattern. In the United States, approximately five million people are on parole or probation. If accused of a technical violation or new crime, parolees and probationers are entitled to a revocation hearing. But these hearings are governed by administrative rather than criminal due process. They also account for an increasing share of all state prison admissions. In 1980, 18% of state prisoners were behind bars for an administrative violation; by 2009, that figure had grown to 33%. Similarly, between 10 and 33 percent of those in jail are there because of a revocation decision. This administrative process has thus fueled the expansion of the carceral apparatus.
Civil pathways to jail and prison have also proliferated. One of these involves the use of civil contempt charges to jail debtors. Mass incarceration has been extraordinarily expensive. Beckett has found that, in response, many states and localities have enacted laws allowing courts to collect fees and fines. Defendants may be charged for the cost of adjudication, state mandated tests, and even legal counsel for the indigent. In 2004, most defendants were assessed fines and fees, including two-thirds of state prisoners and 80% of other felons and misdemeanants. In Washington State, the average fine and fee assessed for a single felony conviction was approximately $2,400, and the maximum is just shy of $12,000, in 2004. These fines, fees, restitution orders, and debts are referred to as legal financial obligations (LFOs). In addition, many prisons and jails charge for the cost of incarceration and medical treatment. Today, tens of millions of Americans live with this type of legal debt. At the same time, the number of parents with outstanding child support obligations has skyrocketed as a result of the welfare reform policies of the 1990s. Most of these arrears are owed to states in compensation for welfare expenditures, and 70% are owed by parents who make less than $10,000 a year. Both LFOs and child support debts are subject to interest.
Emerging evidence suggests that legal and other debtors – especially child support obligors – are not infrequently jailed for non-payment, and many of these debtors appear to be indigent. Technically, the Supreme Court banned the incarceration of indigent debtors in the first half of the 19th century. But, courts have found an “end run” around this. Specifically, courts now issue civil contempt charges when the debtor fails to comply with court orders to pay. In some such cases, authorities arrest and incarcerate the debtor for contempt of court.
Civil law also fuels detention in the juvenile context. In 1974, the Juvenile Justice and Delinquency Prevention Act (JJDPA) prohibited the detention of status offenders. The program was quite successful reducing juvenile detention by ninety-five percent. In response, state court judges lobbied for an exception—the Valid Court Order (VCO). Although judges can no longer detain a juvenile for a status offense, they can now detain a defendant for his failure to comply with the court’s order not to commit the status offense. The VCO exception has been adopted by more than 38 states, resulting in the conviction of 5,300 status offenders. In fact, approximately twenty percent of all detained youth today are status offenders.
In closing, Beckett outlined the many civil control mechanisms that states employ at the local level. After the invalidation of the criminal vagrancy and loitering laws in the 1960s and 1970s, states and municipalities have turned to “no contact” orders, gang injunctions, “off limits” orders, and civil extensions of trespass laws to police the socially marginal. The invalidated vagrancy and loitering laws of yesterday have resurfaced in the form of these civil orders.
All of these systems look and feel like punishment, yet they all use civil and administrative law to evade the constitutional protections afforded to criminal defendants. By shining a light, Beckett hopes to force these systems out of the shadows.
– Student Fellows Philip Kovoor (’12) and Diana Wang (’14)