Hi folks. I’m writing this post because I constantly see a folk theory of criminalization regarding a “profit motive” posted on social media sites like Twitter and Reddit, and I wanted to post a response to it. I am not writing this in order to dismiss concerns about prison labor or for-profit vendors extracting money from prisoners for essential goods and services. I am writing it in order to show that these phenomena are a bad fit when we want to explain why so many people are in prison today.
One version of the theory goes something like this: Private prisons and other greedy corporate stakeholders have become an important political power center supporting increased criminalization. In other words, the reason why America has absolutely ridiculous levels of criminalization is because corporate greed is out of control. There’s also a variant that we might call “new slavery”: Prisoners can be compelled to work for very little compensation, and private actors benefit from this inexpensive labor source. This theory has its roots in historical accounts of convict leasing.
The most succinct response to these theories can be found in Ruth Wilson Gilmore’s Golden Gulag (2007).
The problem with the “new slavery” argument is that very few prisoners work for anybody while they’re locked up. Recall, the generally accepted goal for prisons has been incapacitation: a do-nothing theory if ever there was one. There has certainly been enough time for public and private entities to have worked out the logistics of exploiting unfree labor, and virtually every state has a law requiring prisoners to work. But the fact that most prisoners are idle, and that those who work do so for a public agency, undermines the view that today’s prison expansion is the story of nineteenth-century Alabama writ large…
Although the absolute number of private prisons has indeed grown, the fact is that 95 percent of all prisons and jails are publicly owned and operated. So the argument that more people are in prison due to the lobbying efforts of private prison firms doesn’t stand up to scrutiny. The firms are not insignificant, especially in some jurisdictions, but they’re not the driving force, either. Despite boosterish claims by stock analysts, private prison firms consistently hover on the brink of disaster, while public sector unions fight against losing jobs with good pay and benefits.
To Ruthie’s point, it remains true in 2023 that private prisons only account for a tiny fraction of the US prison population. See the below graphic from the Prison Policy Initiative. As PPI puts it: “private prisons are essentially a parasite on the massive publicly-owned system — not the root of it.”
With respect to prison labor, abolitionists have long argued that it’s a shoddy explanation for mass criminalization. James Kilgore has a good essay on this – echoing Ruthie, he says that prisons are warehouses where people suffer from extreme lack of stimulus. Because prisons are focused on security, production takes a back seat - and the production that does happen is mostly for government contracts, not corporate profits.
I’d add to these points that criminalization costs an insane amount of money. A huge motivation for the defund movement is that municipal coffers are strained by policing and incarceration, sucking up funds that could otherwise support social welfare. In a very direct sense, criminalization is not “for profit” in that all of these institutions are always in the red. Of course, as much as Americans appear to love criminalization, they hate paying taxes. So the costs of criminalization are shifted to the same populations that are subjected to policing and incarceration. While this is an important phenomenon to study – I spent a couple years exclusively researching American fines and fees practices – it moves us away from an anti-capitalist or Marxist critique of criminalization and into a discussion of racism and municipal finance. (Which are also useful!)
We can benefit again from Golden Gulag here if we want to incorporate Marxism in a way that actually clarifies the causes of criminalization. The shortest way to explain this is through the Marxist concept of a “reserve army of labor” or “surplus population.” In brief, capitalist societies require a constant supply of under- and unemployed workers in order to ensure that labor is as cheap as possible. Criminalization contributes to this process by “marking” criminalized people (sometimes permanently), creating a stigmatized underclass with far fewer employment options. Particularly for people who are on parole, they have no power to resist workplace exploitation. If your boss is paying below minimum wage, you have no ability to protest that–if you file a complaint with a labor board or something, they will retaliate by reporting you to your parole officer, which can get you sent back in prison. And you can’t leave that job for another one because there may not be another job who will hire someone with a felony conviction. A few years ago, I reported on a reentry labor nonprofit in New York that pays former prisoners sub-minimum wage to do sanitation work. Even shorter stints of incarceration like pretrial detention in jails can ensure that criminalized people remain in a state of economic precarity. Corporations directly benefit from this stuff - in the big picture, it keeps wages low. It also could serve to prevent unionization efforts, as was detailed in this recent book about labor organizing at Wal-Mart by a couple of professors in my department (some great stuff in here about criminalized workers).
I don’t know how to cite him on this one, but criminalization scholar Jack Norton once shared with me a quote from someone he interviewed on this topic: “Jail cheapens labor.” That's the gist of it! (Golden Gulag also discusses three other kinds of surpluses which are important, but at that point, just go read the whole thing yourself.)
All of that being said, I’m not sure that most corporate actors even realize that this is the case. While it is true from a structural perspective that criminalization creates the reserve army of labor, I think it’s only politicians and theorists who realize it. This is actually compatible with a longer lineage of neo-Marxist scholarship arguing that capitalists don’t have to see beyond their bottom line in order for politicians to act in the interest of protecting capitalism. So, again, the best reading of a “profit motive” for criminalization is really indirect. It is a lot more straightforward to talk about causes like racism, segregation, and media-fueled fear mongering about drugs and guns – and frankly, it requires a lot less background reading. To editorialize a bit more, I also think that heavily Marxist accounts of criminalization can obscure the extent to which the average American is horny for punishment. While it’s probably true that politicians and journalists fueled moral panics which amplified American punitiveness, the important point is that Americans are unusually punitive. This is why we have a racist backlash against the reform prosecutor movement, for example. It’s complicated, and takes us off topic, so moving on…
Apart from the “private prisons” and “new slavery” explanations which Ruthie demolished almost two decades ago, there is one further variant of the “profit motive” theory which is worth discussing. It holds that criminalization functions as a redistributive mechanism, a sort of “carceral job guarantee” – most spending on criminalization is labor spending for publicly employed cops and corrections officers, who benefit materially from that spending. I have no problems with this theory, I just wouldn’t really say it’s about a “profit motive” anymore. It’s about the contestation of municipal resources. In other words, it’s about a struggle for political power. Local cop and CO unions are pretty much like the mob – they are probably more powerful than all of the politicians in your city combined. I’m totally fine with a theory that says cop and CO unions ensure that criminalization persists because their salaries depend on it. This is certainly one piece of the pie. I just think it’s actually not what most people think the “profit motive” means.
Anyway, I hope this is a helpful primer on why I usually push back on “profit” focused explanations of American criminalization.
How does this stand up to the recent investigations on major corporations utilizing prison labor? What about groups like Texas correctional industries? Private companies profit from the regular services provided by prisons from food, healthcare, telecommunications, security, programming and more. While I do agree that this “new slavery” theory does not get at the root of the impetus for mass incarceration - I believe it is a useful point of discussion to draw attention to the financial exploitation experienced by incarcerated people and their families.