Law and Neoliberalism in Keilee Fant v. City of Ferguson, Missouri

Teaching Law and Political Economy through Keilee Fant v. City of Ferguson, Missouri Part II

Angela Harris – 

In my first post on Fant v. Ferguson, I introduced the case as a story about our racialized criminal justice system. The criminal justice story, however, represents only one layer of the onion. Like its fast counterpart, the slow violence experienced by Keilee Fant is embedded in a larger system of structural economic inequality that we call “poverty.” Thomas Harvey, a co-founder of the St Louis public interest law firm ArchCity Defenders, which represented Keilee Fant in the case, has commented, “These aren’t violent criminals. These are people who make the same mistakes you or I do – speeding, not wearing a seatbelt, forgetting to get your car inspected on time. The difference is that they don’t have the money to pay the fines. Or they have kids, or jobs that don’t allow them to take time off for two or three court appearances. When you can’t pay the fines, you get fined for that, too. And when you can’t get to court, you get an arrest warrant.”

The world my students learn about in my first-year Criminal Law course contains references to the spectacles of violent black death we now associate with Ferguson, Missouri. But criminal law classes seldom touch on the mundane world represented in the Fant complaint. As criminal justice scholar Alexandra Natapoff notes, that there are really two criminal justice systems in America. There are about 1 million felony convictions in the United States every year. Meanwhile, there are about ten million misdemeanor convictions, and even more “infractions” – offenses, like traffic tickets, that are technically not crimes at all, and yet are tied to the criminal justice system through fines and fees. The felony system is a familiar, Law and Order world of grand juries, felony charges, and parties represented by counsel. The misdemeanor system produces many of the same bad collateral consequences for people who are convicted, including potential loss of state benefits, loss of employment and housing, loss of eligibility for professional licenses, family disruption, and possible deportation — but without the procedural protections available to felony defendants. Misdemeanants routinely lack access to legal representation. Their cases are handled en masse, not individually. Their claims are speedily dispensed with by plea deals that ignore questions of guilt or innocence. All the while, the individuals – black, brown, and “not quite white” – consigned by poverty to this legal underworld are treated with disdain by overworked prosecutors, judges, and defense counsel, who see them as congenitally dysfunctional “mopes.”

From this perspective, the misdemeanor criminal justice system is one element in a sprawling system of surveillance, punitive discipline, and control that makes the lives of poor people profoundly unfree. Poor people live their lives under the control of government programs that all too often start with the assumption that they are lazy, immoral, and in need of guidance and punishment. Our “welfare” system and our foster care system, for example, are built around the assumption that people receiving government assistance are likely to commit fraud. As sociologists like Kaaryn Gustafson have shown, welfare bureaucracies are so focused on punitive action that they incentivize the very fraud they punish. They are also institutionally invested in restructuring the family lives of poor people, whether the goal is to make them get married, stop them from having so many children, or keep them from having abortions – as Julie Nice and others have demonstrated.

Within this second frame, Fant v. Ferguson is a story about “neoliberalism” – an overused but still helpful word that calls attention to the shrinking social welfare state, the transmission of financial risk from government institutions to households, and the widely-held assumption that market governance is superior to democratic governance in nearly every sector of public life.

Ten years ago, Stephanie Lee Mudge published a helpful article arguing that neoliberalism has three interconnected “faces:” intellectual, bureaucratic, and political. Neoliberalism’s intellectual face, Mudge argues, is an American export to the rest of the world. American and U.S.-trained “free market” economists began to gain influence in the 1970s, partly through association with reform projects in Latin America, partly through the rise of the “Chicago School” of economics, and partly through internationalization of the economics profession. The bureaucratic face of neoliberalism represents a series of policy reforms, familiar to newspaper readers as the standard policies imposed on countries, states, and municipalities suffering under budget “austerity.” Neoliberal policies designed to reduce the size and power of the welfare state and the government sector more broadly, however, also receive a positive spin on the notion that markets more efficiently deliver services of all kinds – including services like the provision of health care, education, and corrections facilities that used to be considered the responsibility of governments.

Mudge describes the political face of neoliberalism as revolving around a new consensus: the state’s responsibility is to “unleash market forces” wherever and whenever possible. She points out that, although neoliberal reforms are often described as getting the state out of the way so that market actors can flourish and bring prosperity to all, in fact a great deal of government action is necessary to produce a “neoliberal state.” The association of neoliberalism with political conservatism is also misleading. The project of building a neoliberal state has been led by Democrats as well as Republicans, as illustrated by the establishment of the Democratic Leadership Council, from which the Clintons rose to power. It was President Bill Clinton, I remind students, who abolished “welfare as we know it” by signing into law the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA). PRWORA brings us back to the recognition that neoliberalism has a fourth face: a human face.

Kerry Rittich argues that neoliberal policies come to rest in families and labor markets, which struggle to adjust to structural and institutional change. Like Jacob Hacker, who argues that under neoliberalism the welfare state has been restructured to push risk onto private households, Rittich argues that government regimes like PRWORA, linked with economic transformations such as the growing “financialization” of the economy, have caused families to fracture and disperse, to become “feminized,” and to become more flexible in structure and function.

The “great risk shift” (Hacker’s term) from government institutions onto families only intensifies the pressure on poor families, like Keilee Fant’s. Some of this new pressure is intentional, aimed at correcting the moral flaws assumed to be the cause of poor people’s poverty. According to the U.S. Department of Health and Human Services Administration for Children and Families, the purposes of PRWORA were to reduce welfare dependency, out-of-wedlock births, and to encourage the formation of two-parent families. Other sources of pressure on poor families emerge from “market forces.” Susanne Soederberg explores the political economy of debt and consumer credit in the contemporary United States and Mexico. Payday loans, credit cards with ruinously high interest rates, for-profit colleges, and of course subprime mortgages all employ business models relying on the fact that if you’re poor, you can be made to pay more. The poverty industry sells itself as providing economic opportunities for individuals and families. But the costs often outweigh the benefits, as illustrated in The Coup’s song, “Repo Man”:

Seen him slidin’ through the town about eleven o’clock
A 1994 850 and the tires were stock
He’ll make a visit to your house like without no knock
And if you pulls out a pole it wouldn’t be no shock
I gives a fuck how much you bench press, if you ain’t pushin’ up
That twenty-five percent interest, your property gets chin checked
Repossessed, now your ride is at the shoe department, dressed for less
He gives a fuck if you’se a mobber with three toddlers and a infant
He’ll take the TV and the carpet in the living room that’s stain resistant
It’s like living in the house wit yo’ daddy preachin’ nice
You can own a chair, but it’s still Pop’s merchandise
And ain’t no gettin’ up and movin’ outside
The Repo Man got clientele worldwide
But trip on this, when you think you step ahead
‘Cause most likely, you one paycheck ahead
Of the Repo Man

Fant v Ferguson makes clear that the ultimate debt enforcer for poor people is the criminal justice system. Although debtors’ prisons are not supposed to exist in the contemporary United States, jail is where people owing “public” debt all too often end up. In fact, fines levied on poor people in many states – fines, that as we know, may lead to extended incarceration — are used to subsidize state treasuries. Christopher Hampson explains:

Many of the debtors who find themselves under the thumb of heavy criminal justice debt receive welfare payments, like disability, social security, and food stamps. Of course, the first scandal is that people at that level of indigence should be considered able to pay debt of any significance. But it gets worse. Welfare programs in the United States overwhelmingly operate through federal-state cooperative programs, whereby states accept federal money in exchange for their promise to distribute the money to the target population within various guidelines. Thus federal welfare money goes into state treasuries with a number of strings attached. But if those same debtors can be pulled over for traffic violations, given heavy fines and fees, and induced, under threat of imprisonment, to take what little money they have and pay down their debt, the state recoups the money, and–voilà, the strings are cut. The state can use the money for whatever purpose it needs. The “Great Texas Warrant Roundup” is deliberately scheduled to coincide with tax refunds, including the Earned Income Tax Credit, a popular welfare program designed to deliver cash to working American families. It’s bad enough that those deemed poor enough to receive money for food (by Congress, no less) should be deemed solvent enough to pay debt. But states actually benefit from running debtors’ prisons at the expense not only of the poor, but also of the federal government and, by corollary, their sister states.

Neoliberal policies – which unwind “public” systems of economic redistribution through state governance while leaving in place state-created “private” rights of contract and property exercised by market actors – create precarious lives. And neoliberal policies, as Fant illustrates, can open the door to a world in which municipal and state budgets are balanced on the backs of their poorest citizens.

Angela Harris is the Distinguished Professor of Law, Boochever and Bird Endowed Chair for the Study and Teaching of Freedom of Equality at UC Davis School of Law.