Predatory Decarceration

Abstract

This Essay critiques an emerging package of state and federal law reforms often broadly referred to as “bipartisan criminal justice reform,” describing the reforms at the level of political economy and referring to the emergent policy as one of predatory decarceration. Borrowing from Keeanga-Yamahtta Taylor’s description of the immediate post-redlining era of federal housing finance policy as predatory inclusion, I describe how these law reforms combine with increasing reallocation of criminal sentences from prisons into the community to create an environment where returning prisoners are coerced into low-wage jobs where they are less likely or able to challenge working conditions individually or collectively.

I analyze these reforms from a political economic perspective rather than with a narrow focus on mass incarceration, arguing incarceration is inseparable from a U.S. political economy with a severely underdeveloped welfare state, making it predisposed to respond to violence and disorder with severe and increasingly invasive and sophisticated penal controls. The predatory decarceration reform package reproduces rather than intervenes in this phenomenon because it subsumes a diverse array of critiques of increased carceral control into mere critiques of prisons. Although approaching the analysis at this level could make the problem of carceralism seem even more intractable and grim, I instead discuss how it opens possibilities for law reforms to support rather than frustrate the goals of the diverse abolitionist and other social movements whose calls for reform has been vastly oversimplified by the fleeting coalitions that produced predatory decarceration.

Keywords: criminal law, law and society, decarceration, prison abolition, reentry