Fordham Law School
What if instead of seeing criminal court as an institution driven by the operation of rules, we saw it as a workplace where people labor to criminalize those with the misfortune to be prosecuted? Early observers of twentieth century urban criminal courts likened them to factories.1 Since then, commentators often deploy the pejorative epithet “assembly line justice” to describe criminal court’s processes.2 The term conveys the criticism of a mechanical system delivering a form of justice that is impersonal and fallible. Perhaps unintentionally, the epithet reveals another truth: criminal court is also a workplace, and it takes labor to keep it running. But beyond a metaphor, how might a sustained analysis of labor in criminal courts enhance our power of observation?
The social theorist who pioneered labor as a prism of analysis was Karl Marx.3 For Marx, human labor was the source of all value and the engine for world historical change.4 Marx’s labor theory of value formed the building block to his philosophy of history: dialectical historical materialism.5 It is not abstract ideas that drove historical progress but rather the creative energy that humans poured into their efforts.6 But a person does not approach the world as an artist before a blank canvas.7 Rather, people live in a particular time in history and face specific limits that mediate their creative energies.8 It is from that dialectical alchemy of engaged human effort and historically contingent material conditions that an existing or an entirely new social structure can emerge.9 Inherently, Marx’s theory of history held open the possibility for social transformation because of the weight he afforded to human agency. Because Marx wrote about a system—capitalism—in a way that he hoped could be useful to those working to overthrow it, it seems particularly apt to invoke his work in a colloquium dedicated to thinking about subverting legal systems.10
Although Marx developed his labor theory of value to elucidate the real dynamics animating commercial exchange, anthropologists like David Graeber have adapted his insights to other spheres of life.11 Institutions, including legal ones, Graeber argues, are only as powerful and valuable as the human effort behind them.12 Just as Marx scrutinized the dynamics of commodity exchange to discover the true source of economic value, Graeber encouraged scholars to study institutions and cultural practices as practical philosophies where people enact their “conceptions of what is ultimately good, proper, or desirable in human life.”13
With Graeber and Marx in mind, I offer three different ways to think about labor in criminal court: (1) labor as a source of sociological value, (2) labor as an input that generates certain measurable outcomes, and (3) labor as a vehicle to advance abolitionist reforms.
First, through their quotidian activities, criminal courts’ workers enact a practical philosophy that communicates lessons about who and how we value each other. Drawing on ethnographic accounts, I argue that criminal courts’ actors—prosecutors and judges, among others—engage in “violence work.”14 The violence is not only physical but also social and structural. Their labor weakens social bonds and entrenches group-level hierarchies, expressed as race, class, and ability.
Second, labor is an input that determines the size of the criminal punishment system. The addition of more prosecutors and their increased productivity lie at the heart of the historic growth in prison admissions at the turn of the twentieth century.15 In turn, as advocates devise reforms to dismantle mass criminalization, shrinking prosecutors’ offices may be the key to true transformation.
Third, labor is also a vital site for struggle. The labor lens illuminates the promise of a specific strategy: building social movement labor unionism in public defenders’ offices. Unionized public defenders are uniquely positioned to leverage their working conditions as a platform to advocate for abolitionist reforms that benefit society more broadly: they can demand reductions to prosecutors’ offices to reduce their caseloads and shrink the size of the criminal punishment system. Such a tactic subverts not only the continued operation of criminal courts but also traditional expectations of lawyers as experts leveraging their rarified skills. Instead, the lawyers position themselves as workers and members of the organized labor movement.
Bargaining for Abolition
Fordham Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/3714