A Debt of Care
Commercial Bail and the Gendered Logic of Criminal Justice Predation

JOE SOSS

University of Minnesota

Co-authored with Joshua Page and Victoria Piehowski. Originally Published in the The Russell
Sage Foundation Journal of the Social Sciences,
 February 2019, 5 (1) 150-172. Go here for the full article.

AMONG THE INSTITUTIONS THAT LINK CRIMINAL JUSTICE SYSTEMS TO SOCIAL INEQUALITIES in the United States, bail remains one of the most important yet least understood. In recent decades, scholars have shown how social subjugation and economic inequality weave their way throughout the origins, operations, and consequences of mass incarceration (for example, Western 2006; Patillo, Weiman, and Western 2004). Policing and judicial action have been subject to extensive scrutiny in this regard (Epp, Maynard-Moody, and Haider-Markel 2014; Lerman and Weaver 2014; Kohler-Hausmann 2014). The collateral consequences and spillover effects that ripple through the social networks of people who become entangled with the system have as well (Clear 2007; Wakefield and Wildeman 2014).

 

Scholars have begun to clarify how monetary sanctions such as fines and fees compound inequalities as they turn poor people’s assets into government revenues (Harris 2016; Harris, Evans, and Becket 2011). Still, knowledge about commercial bail has changed little since legal scholar Malcolm Feeley observed in 1979 that “there has been virtually no scholarly interest in the bail bondsman.       this neglect and perfunctory dismissal cannot be attributed to the bondsman’s lack of importance” (96–97). This blind spot is especially troubling because commercial bail stands at the center of resource extraction in the pretrial process and is one of the most distinctive aspects of the U.S. criminal justice system. The United States and the Philippines are the only countries that permit a for-profit bail bond industry. And in a criminal justice system shot through with efforts to generate revenues for public institutions (such as fines and fees) and private firms (such as prison profiteering), commercial bail is one of the oldest and most enduring sites of extractive public-private partnership. Since the 1910s, it has offered a template for how the machinery of criminal justice can be used to siphon assets from poor communities.

 

Each year, the bail industry extracts millions of dollars from lower-income communities, disproportionately from poor communities of color and often in cases where defendants are found not guilty (see, for example, Gupta, Frenchman, and Swanson 2016). These revenues flow to state and market institutions alike, but the biggest moneymakers are the large insurance corporations that back the bonds sold in smaller bail businesses. In a field dominated by about thirty-five major players, funds reliably flow to the big sureties. In 2011, they secured about $13.5 billion in bonds; and while auto and property insurers typically pay out 40 to 60 percent of their revenue in losses each year, records suggest that bail surety companies pay less than 1 percent in losses (Bauer 2014).

 

Against this backdrop, this article builds on prior scholarship in several ways. First, we adopt the bail industry as a focal point for analyzing the interplay of social inequalities and the criminal justice system. In addition to illuminating a rarely studied site of this relationship, the analysis of bail offers a distinctive perspective on the broader practice of resource extraction in the criminal justice field. Research on inequality and bail has laid important foundations for this work, showing, for example, how racial factors affect judges’ bail decisions and how pretrial detention can negatively affect legal outcomes, employment, earnings, and access to welfare benefits (on racial factors, Demuth 2003; Schlesinger 2005; on detention, Dobbie, Goldin, and Yang 2016; Gupta, Hansman, and Frenchman 2016). Other studies have made progress in measuring the extent and distribution of bail revenues, focusing on how wealth is disproportionately drawn from poor communities of color (Gupta, Frenchman, and Swanson 2016; Color of Change and ACLU 2017). Pursuing a more process-centered analysis, we examine how the unequal terms of societal relations structure bail practices, including how bail agents pursue extractive relations with clients and how bail practices function as mechanisms for the reproduction of inequality and social control.

 

Second, this article offers a complement to the punishment perspective that typically frames studies of resource extraction in the criminal justice field. Most scholarship on this topic has emerged from the punishment and society subfield and reflected its guiding concerns. Thus, leading scholars conceptualize financial takings in the criminal justice field as “monetary sanctions, sometimes called Legal Financial Obligations (LFOs), [which] include fees, fines, restitution orders, and other financial obligations that courts and other criminal justice agencies may impose on persons accused of crimes” (Harris, Evans, and Beckett 2011, 235–36). Similarly, leading explanations for these practices tend to focus on developments within the criminal justice field, emphasizing how a “culture of punishment” created new needs for revenue streams to fund the penal state, fueling and justifying the push for tougher monetary sanctions (see, for example, Harris 2016).

 

The punishment frame has fostered a growing scholarly community and important empirical and theoretical advances. By isolating state-centered financial takings in the penal field, however, this frame can obscure analytic and historical questions about how state-implemented takings (such as fines and fees) relate to other modes of targeted financial extraction. Indeed, reliance on the punishment frame helps explain why studies of monetary sanctions have devoted so little attention to closely related practices that have grown in the same decades—such as the systematic resource extractions associated with monetary bail, asset forfeiture, and prison profiteering.

 

To complement studies that adopt a punishment frame, we draw on the concept of predation as it has been developed in the broader study of political economy and social domination. A predation frame encourages scholars to locate the varied revenue projects woven into the criminal justice system today in the longer historical trajectory of dispossession in the United States—institutionalized takings, past and present, in which state and market actors routinely target subjugated groups for resource extraction. The roots of this approach can be traced to several intellectual traditions: theories of the predatory state (North 1981; Tilly 1992); Marxian analyses of primitive accumulation and dispossession as ongoing features of capitalism (Glassman 2006; Nichols 2017); studies of “racial capitalism” in the black radical tradition (Robinson 1983; Du Bois 1935); and theories of the symbiotic relationship between social contract and social domination (Pateman and Mills 1997).

 

Challenging liberal-democratic theories of state and society, these varied traditions suggest how a social contract among dominant actors may be premised on and institutionalize various forms of subjugation (Pateman and Mills 1997). Images of free exchange among equal partners to contract, in this view, enable and legitimate exploitation (such as wage-based employment relations) and expropriation (such as of land, labor, or money). Expropriation and exploitation operate as foundational features of a liberal order that, though it appears to be rooted in voluntary agreements among equals, is actually organized around hierarchical power relations rooted in class, race, gender, and other axes of social dominance (Dawson 2016; Fraser 2016). Predatory modes of dispossession, such theorists argue, have long played a central role in enriching dominant groups and building and funding liberal state and market institutions, underwriting civic hierarchies, and sustaining the social order.

 

From this perspective, fines and fees can be seen not just as burdens imposed as sanctions but as elements of a variegated palette of extractive relations and practices associated with the criminal justice system. In turn, these elements can be drawn into a common frame of analysis with payday lending, subprime auto and home lending, and other predatory projects that exploit marginalized communities as captive markets, creatively converting their disadvantaged social positions into revenue streams. Criminal justice predation can also be located in relation to the longer history of dispossession in the United States, from the antebellum appropriation of labor and land through chattel slavery and settler colonialism through the postbellum systems of debt peonage, sharecropping, and convict leasing. In this article, we analyze the bail field as a complex of socially and politically produced predation opportunity structures: frameworks that convert the needs, vulnerabilities, and aspirations of subjugated populations into revenue opportunities for state and market actors. We ask how social inequalities guide these operations and how predatory bail practices, in turn, reinforce social inequalities.

 

Along a third axis, we extend prior work by responding to calls for greater attention to gender in the study of inequalities and criminal justice practices (see, for example, Haney 2004; Crenshaw 2012). Like other predatory practices in and around the criminal justice system, resource extraction in the bail industry is organized by race and class and guided by their social and spatial coordinates. As we show, however, gender is no less central to the intersectional matrix that organizes action in the field. Just as men of color are disproportionately targeted for arrest and incarceration, women of color disproportionately shoulder the burdens of the criminal justice field’s financial takings. The gender basis of bail predation, however, is not simply a matter of sex differences in the distribution of burdens. Instead, to grasp the underlying logic of practice in the field (that is, the largely taken-for-granted dispositions that generate patterns of action), we need to understand how race- and class-focused resource extractions are advanced through gendered ethics of care and ordered by the gendered organization of care relations.

 

Much of the work on collateral criminal justice effects focuses on dynamics of exclusion and marginalization. Here, we focus on how gendered bail practices work to draw women cosigners into the criminal justice system’s predatory operations. In this regard, our analysis builds on Megan Comfort’s ethnographic study of women who visit incarcerated men and the dynamic process of “secondary prisonization,” a “less absolute but still powerful form” of socialization and social control associated with prison exposure (2008, 15). We extend this insight to a gender analysis of bail-centered predation. Through the bail contract, cosigners are repositioned as economic actors assuming new debts, as citizens taking on new relations to state powers, and as social actors experiencing new or revised ties to defendants and their relations. Bail processes insert new financial terms into existing relations of care, often reconstructing them in the idiom of debt (LeBaron and Roberts 2010). In this regard, bail-centered predation can be seen as productive— not only in its incorporation of cosigners into criminal justice processes and its reconstruction of women’s civic and economic positions, but also in its reordering of gendered social relations and associated ethics of care.

 

We depart from Comfort’s account of secondary prisonization in one important respect. Comfort argues that the women who support prisoners become secondary targets of social control, socialization, and financial extraction. In the bail field, we argue, women cosigners are better conceptualized as primary targets of predation. Few defendants have the resources needed to enter bail contracts on their own. From the start, the defendant functions as an entry point (even a lure) for a predatory process that focuses on locating and securing cosigners. Women, and most of all mothers, are prized among potential bail clients because they are seen as likely to have both the financial means and the obligations to care (that is, the motive) to transfer resources to the bail industry. Thus, social interactions between cosigners and bail agents are suffused with ethics of care and structured by the gendered basis of caring relations in the broader society.

 

Our analysis is based on an immersive ethnographic study of the bail industry in 2015 and 2016. For about eighteen months, Joshua Page worked as a bail bond agent, participating and observing as an employee on the frontlines of the industry. Drawing on this fieldwork, we ask how gender operates (in conjunction with race and class) as a structure of interpretation and action, guiding practice on “both sides of the desk” in the bail industry. How do participants on each side of the social transaction understand and make use of the gendered rules of the game? How do gender and the gendered basis of care relations position women (especially women of color) as primary targets of predation? And how should scholars of inequality and criminal justice think about the consequences of the bail industry’s gendered process of resource extraction?

Go here for the full article.

Joe Soss will present "Preying on the Poor: Criminal Justice as Revenue Racket" on Thursday, October 17, 4:30-6:00 pm, 133 S. 36th Street, Room 250 (The Forum).