Abstract

Excerpted From: Sandeep Singh Dhaliwal, The Criminal System under Racial Capitalism, 58 U.C. Davis Law Review 1589 (February, 2025) (336 Footnotes) (Full Document)

In her 2023 State of American Business address, Suzanne Clark stressed the need to strengthen the “rule of law” to face “the scourge of crime sweeping American cities.” According to Clark, stronger criminal law enforcement would “underpin the freedom and safety that allow[] businesses to grow and communities to thrive.” As CEO of the U.S. Chamber of Commerce, the country's preeminent business lobby, Clark's words carry outsized weight. Indeed, over the course of the year, the Chamber successfully pushed for stronger criminal laws across the country, tying these efforts to a national moral panic around retail theft.

Whatever one thinks about Clark's pointed rhetoric, a commonsense intuition underlies it: the economy has some relation to the criminal system.

This Article challenges the predominant way this relation is presumed to exist. I argue that the criminal system plays a constitutive role in the ordering of our racialized political economy.

By contrast, consider the notion that today's reform efforts should involve greater attention to economic “root causes of crime.” Such emphases on root causes tend to treat the economy as “analytically prior” to the criminal system. The two domains interact, yet a boundary line exists between them, one that gives priority to the economy.

Clark's State of American Business speech preserves this boundary but reverses the causal arrow: criminal law enforcement produces a baseline of public safety, which is a precondition to economic prosperity, allowing citizen-consumers to spend and businesses to flourish. Without that baseline, crime intrudes upon the orderly operation of markets.

Critiques of profit motives are another way relations between the economy and criminal system commonly enter reform-oriented discourse. While some of these critiques reveal the extractive and subordinating nature of the system and its alignment with private interests, the focus on profit-making reinscribes a boundary line. Profits belong in the domain of the ordinary economy. Their undue influence in the criminal system distorts the separate domain of justice.

We can see this critique deployed in reverse as well. Consider the notion that collateral consequences of criminal punishment impose excessive economic barriers, preventing system-involved people from getting good jobs. Here, criminal punishment extends itself too far. It distorts the ordinary operation of the economy by over-administering justice.

These ideas around root causes, public safety, and distortions that run in each direction, share a basic conceptual framework. The “economy” and criminal system exist as analytically separate domains, even as each produces consequences for the other. This analytical separation has several shortcomings: it permits mischaracterization of the social processes embedded in our punitive society; it insulates the economy against a powerful source of critique and politicization; and it drastically understates the role of the criminal system in structuring and constituting the economy.

This Article uses the concept of racial capitalism to challenge this analytical separation. Today's criminal system, I argue, plays a constitutive role in the ordering of our racialized political economy. It does so in at least two ways. First, the system functions as a major labor governance institution, stabilizing, reproducing, and legitimating the patterned processes of our political economy. This reality stands in stark contrast to notions of a liberal, free market economy, whose primary pathology is weak social welfare provision. Second, the system has given rise to a prison-industrial-complex (“PIC”). The PIC serves as an economic center of gravity, forming a key terrain of political-economic struggle, where both material and ideological contestation takes place. This combined image casts the criminal system as a constitutive feature of the U.S. political-economic order. It cannot be set aside to the margins -- or outside the boundaries -- of conceptions of the economy.

Others have challenged this analytical separation before. Ruth Wilson Gilmore provides the paradigmatic example in Golden Gulag, where she describes the ““prison fix” that restructured California's economy. Many of today's social movements, meanwhile, have insisted on connecting struggles for racial and economic justice, combining abolitionist aspirations with critiques of capitalism. And in legal scholarship, Noah Zatz has developed an account of a “carceral labor continuum.” Zatz's account explains how the criminal system stretches deeply into what is traditionally thought of as the free economy, giving a carceral character to supposedly free-world labor.

Building on these insights, this Article contributes to ongoing scholarly discourse around reform, racial capitalism, and labor struggle. In recent years, the concept of non-reformist reforms has pervaded law school classrooms, legal scholarship, and public intellectual work. My use of the racial capitalism frame here facilitates the sort of analysis a non-reformist reform framework demands, rendering intelligible criminal law's relation to the patterned process of our political economy, to expand our understanding of “where law takes shape and in relation to what.” For example, I examine the criminal system's convergence with the politics of full employment, analyzing the increased attention business groups and private prison companies have directed towards the reentry space. As reform-minded alternatives to incarceration proliferate, the racial capitalism frame illuminates how the criminal system nevertheless structurally subordinates through labor.

This Article also builds on still-nascent law and racial capitalism scholarship. Prominent accounts tend to focus on how law facilitates racialized exploitation and domination through illustrative, and perhaps overlooked, examples. In contrast, I use racial capitalism to think about where race-making legal institutions and capitalist economic dynamics converge in systemically significant ways, to simultaneously (1) govern patterns of social wealth production and (2) produce key sites of political-economic contestation.

My analysis also challenges the boundaries of legal scholarship focused on contemporary labor struggle. Such scholarship, including work that applies a political economy lens, has largely ignored the relevance of the criminal system. This is a critical oversight. The expansive social fields of the criminal system and work overlap considerably and demand greater attention from legal scholars. Some segments of organized labor, like retail and service workers unions in Alabama, meanwhile, have begun to identify the existential threat the criminal system poses to their collective power.

This Article proceeds as follows. Part I briefly develops the concept of racial capitalism, to anchor the analysis that follows. I use the concept to consider how the criminal system and capitalism mutually support one another, while simultaneously structuring racialized class struggle.

Part II describes the criminal system as a labor governance institution. I begin by reviewing three leading critical accounts of the system's labor governance functions. I then reconstruct and supplement these accounts to develop a new theoretical framework. I argue that the criminal system functions to ration total available employment, as well as channel and sort system-involved people into precarious work. Taken together, the system provides decentralized planning and coordination fit for the labor markets of a punitive society. This becomes especially apparent when the system is seen as a foil to the idea of a federal job guarantee, which civil rights and labor groups fought for in the 1970s but never realized. I conclude this Part by using the concept of interest convergence to critique the business lobby's new consensus around reform, which focuses on removing “barriers” to employment system-involved people face. I argue, rather, that these reformist aspirations are better understood as part of a multilayered strategy to maintain an imbalance of power between workers and employers.

Part III describes the structure and prevailing economic ideologies around the PIC. I contrast the PIC with the military-industrial-complex to clarify its most structurally salient feature, which is the PIC's existence on state and local government balance sheets. I also identify the economic justifications that underlie the PIC's development across a rural-urban continuum. These features help explain why the criminal system continues to serve as a staging ground for broader struggles around how the economy should work, and for whom. While recent scholarship has tended to consider the critiques and demands of abolitionist and other left social movements to illustrate this, I look in the other ideological direction. I focus on how the U.S. Chamber of Commerce has been at the forefront of the national moral panic around retail theft. The Chamber has used the panic to simultaneously defend both the criminal system -- well beyond the boundaries of the narrow issue of retail theft -- and the Chamber's own vision of “American free enterprise.” In other words, the Chamber's ideas about how the economy should work, and who its protagonists are, have been linked to a punitive status quo. An anti-state vision of free enterprise and racialized state violence are bound together here in a project of mutual justification.

Part IV concludes. This analysis provides a new angle from which to revisit the idea of a federal job guarantee as a path not taken, and potential program for the future. But whether the criminal system ceases to function as a major labor governance institution any time soon will depend, in part, on whether labor movements recognize its constitutive role in the broader political economy and oppose it. The business lobby, on the other hand, has already made the connection.

[. . .]

Analytical separation between the criminal system and the “economy” allows for a distinct colorblindness to take root. One can express reservation about or critique the criminal system, including its racially disparate impacts, without identifying its complicity in the reproduction of our deeply unequal, racialized political economy. By preserving this analytical boundary, the economy can continue to present questions that are primarily technical in nature, rather than political or moral. This protects status quo economic arrangements against powerful sources of critique and politicization, channeled through opposition to the criminal system.

A proper accounting of the criminal system, through the lens of racial capitalism, rejects such a boundary. This distinctly political system, charged with administering justice, functions as a sprawling, decentralized labor governance institution. This view upends the notion of free markets. By rationing available employment and channeling and sorting individuals into precarious work, the criminal system performs decentralized economic planning and coordination. It is a punitive, subordinating invisible hand.

This account identifies the criminal system as a foil to the visions of economic planning expressed in the 1970s struggles for a job guarantee. That path not taken, dismissed byading economists of the day, should be revisited in light of the devastating planning and coordination mechanisms that have emerged in its wake. In this way, the job guarantee should be understood as a legal system of its own, equally concerned with questions of justice. The guarantee would of course require its own legal architecture, to establish the substance of the right to a job, guide administrative practices, and adjudicate unresolved tensions. This would not be without historical and international precedent to draw on. From the New Deal era Works Progress Administration, to contemporary international programs, there are numerous examples from which to think about implementation and legal construction. Still, basic questions, like what sorts of jobs would be created and prioritized, would remain open to democratic deliberation. As she advocated for a job guarantee, Coretta Scott King famously said the United States “has never honestly dealt with the question of a peacetime economy,” implying that her vision of a guarantee rejected reliance on direct job creation through militarism and defense spending.

Ultimately, whether the criminal system ceases to serve these expansive labor governance functions any time soon will depend, in part, on the extent to which emergent labor movements see the criminal system's punitive excesses as part of a shared struggle. That is, whether they understand the system as playing a constitutive, as opposed to marginal, role in the broader political economy. While there are recent instances of formerly incarcerated people organizing themselves into unions and pushing for changes to labor market regulation, such examples are few and far between and limited in their scale. This only makes sense given that the criminal system channels and sorts individuals into precarious work, where they are isolated, disempowered, and vulnerable to reincarceration. Connections to the broader labor movement continue to be necessary. It's possible, however, that we are seeing signs of such shifts today. For example, during the intense 2023 New York State budget negotiations around bail reform, New York City's largest labor union, representing 250,000 public employees, remarkably opposed Governor Kathy Hochul's efforts to strengthen bail laws. The union saw bail reform as a working-class issue for the many “living paycheck to paycheck.” Of course, this instance, together with examples like the lawsuit in Alabama, brought jointly by unions and incarcerated people, fall short of establishing any reliable pattern of solidarity. The challenge of constructing more stable collective formations remains.

Much of the business community, on the other hand, appears to understand the criminal system's constitutive role quite well. This is most evident in the Chamber of Commerce's remarkable defense of the system in recent years, together with its ultimately narrow critique of “barriers” to employment. Theirs is a commitment to the free flow of labor in a political-economic context where much of the work on offer is precarious. Joining this commitment is support for criminal punishment, which apparently upholds the orderly functioning of markets, a precondition to prosperity. These contested ideas around freedom, punishment, safety, and flourishing lie at the core of U.S. racial capitalism.

Sandeep Singh Dhaliwal. Research Scholar & Clinical Teaching Fellow, NYU School of Law; incoming Assistant Professor of Law & Associate Director of the Center for Labor and Employment Law, St. John's University School of Law.