Frances Fox Piven - The New American Poor Law

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					             THE NEW AMERICAN POOR LAW
                       FRANCES FOX PIVEN

E     arly in 2011, the US Census Bureau reported that 14.3 per cent or 47
      million people – 1 in 6 of Americans – were living below the official
poverty threshold, currently set at $22,400 annually for a family of four.
Some 19 million people are living in what is called extreme poverty, or on
incomes below half the poverty line. More than a third of those extremely
poor people are children. Indeed, over half the children younger than six
living with a single mother are poor.1 Extrapolating from this data, Isabel
Sawhill of the Brookings Institution estimated that the poverty rate will
increase to nearly 16 per cent by 2016, and the child poverty rate will
increase to 26 per cent.2 No one will be surprised to learn that minorities are
substantially overrepresented among the poor, but so are women.3
   The situation of the poor in the United States is actually considerably
worse than these numbers suggest. In the US, the official poverty line is
an absolute measure of subsistence needs, simply three times the minimal
food budget created in 1959, adjusted for inflation in food costs. This means
that the poverty threshold takes no account of increases in tax, or housing,
or fuel, or transportation, or healthcare costs, all of which are rising more
rapidly than the costs of basic foods. So the poverty measure understates the
basic costs of subsistence. Moreover, in 2006 interest payments on consumer
debt put over 4 million people who were not officially in poverty below
the line, making them ‘debt poor’.4 Similarly, if childcare costs, estimated at
over $5,000 a year in 2002, were deducted from gross income, many more
people would be counted as officially poor.5
   Moreover the very idea of using a measure of absolute necessities should
be questioned. Most countries measure poverty in relative terms, generally
those below half the median income, thus taking into account the overall
rise in living standards in the society in assessing the circumstances of those at
the bottom. When comparable measures are used, the United States has far
higher poverty rates than other rich countries.6 Indeed, poverty rates in the
United States may match rates in some parts of the global South. New York
                                    THE NEW AMERICAN POOR LAW               109

City, the global centre of American neoliberalism, is also the international
capital of finance, and its poverty rate is just under 20 per cent. The result
is that ‘If New York City were a nation’, reports James Parrott, ‘its level of
income concentration would rank 15th among 134 countries, between Chile
and Honduras’. He adds that Wall Street is only 15 miles from the Bronx,
the nation’s poorest urban county.7
    High levels of poverty in the United States preceded the economic
meltdown of 2007-09. Between 2001 and 2007, poverty actually increased
for the first time on record during an economic recovery, from 11.7 per cent
in 2001 to 12.5 per cent in 2007.8 Poverty rates for single mothers in 2007
were 50 per cent, higher in the US than in 15 other high-income countries.9
Black employment rates and income were declining before the recession struck
in 2007. And there is simply no evidence to support the familiar bromide
that poverty in the US today is a temporary condition associated with youth
or hard luck or economic crises. Preconceptions notwithstanding, the US is
a low mobility society.10
    That said, these trends worsened sharply with the onset of the Great
Recession that began in 2007. The Economic Policy Institute reported that
the typical working-age household, which had already seen a sharp decline of
roughly $2300 in income from 2000 to 2006, saw another decline of $2700
from 2007 to 2009.11 Higher and mid-wage industries accounted for most of
the job losses, while lower-wage industries accounted for nearly half of such
growth as occurred in the uncertain recovery.12 Manufacturing contracted,
and overall the labour market lost 6.1 per cent of payroll employment. New
investment, when it occurred at all, was much more likely to be in machinery
than in new workers, so unemployment levels remain alarmingly high.13 In
other words, the recession accelerated ongoing market trends toward lower-
wage and insecure employment.14
    A decade ago it was widely thought that the next phase of welfare innovation
would be something called ‘workfare’. Although workfare programs on the
ground varied considerably, the basic idea was simply to make the receipt
of welfare benefits conditional on work by the recipient, sometimes work
for wages, sometimes in exchange for a welfare check; sometimes the work
was in the public sector, and sometimes for private employers. Jamie Peck
studied these innovations as they were being developed in the US, Canada
and Great Britain, and proposed that, local variations notwithstanding, the
‘policy orthodoxy of flexibly deregulated labour markets now [had] a social
policy analogue in the concerted advocacy of workfare programs’.15 But Peck
was also keenly aware of the limits of workfare, which depended on buoyant
labour markets. And in fact, the welfare-to-work policies did not become

dominant, just as in an earlier era the workhouse did not become dominant.
Particularly in the United States, an older strategy of impoverishment and
insult has prevailed, except that it has been imposed with particular vigour
on women and minorities.
                       REGULATING THE POOR
In Regulating the Poor, Richard Cloward and I argued that the treatment of the
poor in modernizing western societies could only be understood in relation
to the problem of enforcing and regulating labour, a problem that became
more salient as labour markets supplanted traditional and largely agricultural
arrangements that had shackled people to the soil and the lord. Of course,
for much of our history, the majority of working people were in fact poor.
But we meant a stratum of people worse off than the main body of workers,
and distinct from them in that they were also stripped of social respect. As
traditional labour relations lost ground to markets, this was accomplished in
significant part by the creation of a new institution, a system of discipline
and assistance usually called poor relief. The Webbs wrote of the widespread
creation of relief systems in commercializing Europe as the development of
‘a new statecraft relative to destitution’.16 The inauguration of relief systems
was usually provoked by outbreaks of disorder by people who were starving.
But the management of relief over time was more importantly shaped by
its role in disciplining workers. From its early beginnings, the new statecraft
gave meagre assistance to those who turned to it, and the terms of that
assistance were harsh. Just as important, those who turned to the parish or
the county were subject to sustained rituals of public humiliation. That harsh
treatment and especially the humiliation has always constituted a dramatic
warning to the mass of working people trying to survive on their earnings.
The practices of relief or the workhouse or welfare sent the message that
there was a worse fate than low wage work, and that fate was to fall into
abject poverty and become a pauper.
    Poverty and its institutionalized insults have been used to divide and terrify
working people for centuries. It stands to reason that with the intensification
of labour exploitation in the neoliberal period, with shrinking wages, the
spread of insecure and irregular work, and the escalation of the war against
unions, that extreme poverty would also increase, and so would its uses
as a social drama to intimidate workers who were still managing to stay
afloat. It also follows that the strategy would be boldest in the United States
where other neoliberal labour policies were so aggressively promoted. But
while there are striking continuities in the law and practice of poor relief
across time and across borders, the institution has also been periodically
                                   THE NEW AMERICAN POOR LAW              111

overhauled, sometimes to take account of shorter-term problems of popular
rebelliousness, and sometimes in reflection of deep-seated changes in labour
markets. Recent developments in the United States suggest to me that the
ancient institution of relief has been adapted to take account not only of the
deteriorating terms of wage labour generally in a neoliberal era, but also of
vast changes in the composition of the American labour market.
    These changes were historic. We talk a lot about the ‘race to the bottom’
resulting from the fact that American workers now compete with low-
wage workers everywhere. But there have also been system-wide changes
in the American labour market resulting from the massive incorporation
of women, as well as the incorporation of previously agricultural African
Americans and Latinos.17 I am arguing that poverty policy was reconstructed
as a reaction to these developments. For a brief time during the more liberal
period of welfare in the 1960s and 1970s, a good many single mothers had
been permitted to live on the dole while their children were young, and
even to live at levels not worse than low wage workers. The expansion of the
imperative of wage labour to include women, as well as African-Americans
and Latinos who had laboured in the agricultural South or Latin America,
often under feudal terms, came to be reflected in policies that created a class
of disrespected poor people that was not only becoming more numerous
and worse off, but in which women and minorities were disproportionately
prominent. Between 2000 and 2009, the percentage of mothers in the labour
force increased, even as the percentage of women with an income less than
half the poverty level rose, and the percentage of poor children receiving
welfare assistance fell.18 When the Great Recession hit, 77 per cent of low-
income women reported living paycheck to paycheck, a 17 point jump
from the previous year.19 Similarly, when unemployment rose overall, it rose
much more among Blacks and Latinos, who are also far more likely to find
themselves among the long-term unemployed, and far less likely to receive
unemployment benefits.20
    Part of the cause for high and rising poverty levels in the United States
is the inevitable result of the decades-long business mobilization to reduce
labour costs and weaken labour organizations in the workplace. The
mobilization began in the 1970s, and took form in changing workplace
labour relations, where employers trying to hold down wages became much
more intransigent in negotiations, and deployed strategies of union busting
and restructuring of the labour process to make work more insecure. And
business also mobilized to change public policies bearing on workers and
their unions, with the result that National Labor Board decisions became
much less favourable to workers and unions, workplace regulations were

not enforced, the minimum wage lagged far behind inflation, and safety
net programs for the unemployed or the unemployable became more
restrictive and benefit levels fell (although the Earned Income Tax Credit
which effectively provides a taxpayer subsidy to low-earning workers and
their employers expanded enormously). Inevitably, the overall impact of the
campaign to reduce labour’s share of national earnings also had the effect of
increasing the proportion of the population unable to earn even a poverty
level livelihood.21 But that is not the whole of it. The poor and the programs
that assisted them were also the object of a large-scale campaign of direct
                             THE CAMPAIGN
Neoliberalism is variously defined, but most commentators would agree that
it involves the increased penetration and domination of the state by capitalist
interests. The project of state domination in an electoral-representative
democracy depends not only on lobbyists, but also on winning public
opinion, at least enough to win elections. And the first phase of the attack
on the poor does seem to have originated as an electoral strategy. This
began even while the Black Freedom Movement of the 1960s was still in
full throttle, and was evident in the presidential campaign of Republican
Barry Goldwater, as well as the recurrent campaigns of sometimes Democrat
George Wallace, the segregationist Alabama governor. Richard Nixon’s
presidential bid in 1968 picked up the theme. As many commentators have
pointed out, Nixon’s campaign strategy tapped the rising racial animosities
not only of white southerners, but also of the white working-class people
who were now locked in contests with newly urbanized African-Americans
over jobs, public services, and housing and school desegregation. The racial
theme was instantly merged with talk about the poor, with the steady rise
of political propaganda targeting the poor and contemporary poor relief
programs. Indeed, poverty became a kind of metaphor for Blacks, along
with other metaphors, like welfare and unwed mothers, and crime.
    Much of the energy for the campaign came from electoral politics as
resurgent Republicans tried to defeat Democrats by associating them with
Blacks and policy liberalism. But whatever the immediate impetus, the bold
outlines of the message were classical invocations of the call for excluding
and demeaning the very poor that in short order were to result in a ‘War
on Drugs’ that largely ignored the major traffickers in favour of the lowest
level offenders,22 massive prison incarceration and the wholesale ‘reform’
of the main means-tested cash assistance program, Aid to Families of
Dependent Children.23 This politically driven attack on the American poor
                                     THE NEW AMERICAN POOR LAW               113

was an important opening drama in the decades-long campaign launched by
business and the organized Right against workers.24
   In fact, the neoliberal campaign to dominate the state had a much larger
agenda than regulating the poor or attacking African-Americans. The
bigger goals were soon apparent: massive redistribution of the burden of
taxation, deregulation, the cannibalization of government services through
privatization, wage cuts and enfeebled unions. At this stage, the poor, and
Blacks, were a rhetorical foil, a propagandistic distraction to win elections
and make bigger gains. Still, the rhetoric was important. A host of new
think tanks, political organizations and lobbyists in Washington D.C. carried
the message that the country’s problems were caused by the poor whose
shiftlessness and sexual promiscuity were being indulged by a too-generous
welfare system. Moreover, big cuts in the means-tested programs followed
in short order. The staging of the cuts was itself propaganda, but the cuts
also accumulated to erode the safety net that protected both the poor and
workers, especially low wage workers, and that meant especially women and
minorities. By 1980 and the election of Ronald Reagan, propaganda had
smoothed the path for huge cuts in programs for poor people. Means-tested
programs were cut by 54 per cent, job training by 81 per cent, housing
assistance by 47 per cent.25 By the 1990s, the Republican campaign against
the poor, and Blacks, came to be inflected back on the Democrats as they
floundered for electoral strategies to ward off the assault, and to raise business
money. It was Bill Clinton who campaigned with the slogan ‘end welfare
as we know it’.
   The campaign at the federal level was soon matched by the activities in
the state capitols of organizations like the American Federation for Children,
the American Legislative Exchange Council, the Institute for Liberty, and
the State Policy Network. Their agenda was also big, eventually calling for
large-scale privatization of public services, business tax cuts, the rollback of
environmental regulations and consumer protections, crippling public sector
unions, and measures (like requiring photo identification) to restrict access to
the ballot by students and the poor. In other words, the agenda was and is the
capture of the American governmental apparatus. But from the beginning of
the neoliberal mobilization in the 1970s, the poor were a main public target,
and the main policy consequences were welfare cutbacks, particularly in the
Aid to Families with Dependent Children (AFDC) and state-level General
Assistance programs, coupled with a law and order campaign that resulted
in draconian sentencing practices, a huge prison expansion, and the massive
incarceration of Black men.
   Much of this effort was played out in state politics. AFDC was a federal

grant-in-aid program targeted to impoverished lone mothers and their
children that ceded considerable authority to the states, and often the
counties, in determining eligibility and setting benefit levels. When Black
insurgency escalated in the 1960s, the federal government issued a series
of rulings that restrained state and local governments from their customary
restrictive welfare practices. Not surprisingly, the rolls rose and benefit
levels reached their peak in the late 1960s. Then, as the protests subsided,
federal oversight was withdrawn. Between 1970 and 1996, the real average
level of maximum benefits fell by more than half, providing income for a
family of three of only a fraction of the poverty line. Finally, in 1996, the
program was eliminated, to be replaced by Temporary Assistance to Needy
Families (TANF), a block grant that gave the states a good deal of leeway
to limit assistance for a variety of reasons, and a remarkable incentive to
do just that since the states received the full grant no matter how many
people they actually assisted. The law also eliminated or greatly reduced the
eligibility for federal safety net programs of legal immigrants during their
first five years of US residence.26 Subsequently, noncitizen eligibility for
Food Stamps and Supplemental Security Income was restored, but not for
TANF or Medicaid.27 The industry of policy researchers studying the effect
of this reform all agree that, not surprisingly, the rolls have fallen dramatically
and that at least for a time, work effort by recipients increased. As Stephen
Pimpare points out, evaluations of the effects of the new program either on
labour markets or family well-being are less conclusive, perhaps, he says,
because benefits had already been reduced sharply by the time TANF was
introduced so few families actually counted on welfare for a large portion of
their income.28
   In any case, the significance of the large changes that occurred in welfare
policy over these decades cannot be properly assessed by research that fastens
narrowly on the impact on a relatively small population of recipients. A more
informative study is provided by Soss, Fording and Schram in a forthcoming
book.29 Their data show that at the beginning of the 1960s, state-to-state
variations in welfare benefit levels were closely correlated with differences
in state retail wages, and remained substantially lower than those wages,
averaging 60 per cent. Then as Black insurgency forced the expansion of
the rolls and the raising of benefit levels along with the introduction of food
stamp benefits, the relationship between wages and benefit levels weakened,
and in some states benefits actually exceeded the value of wages. After the
mid-1970s, as insurgency disappeared, the real value of benefits declined,
although not as much as wages in the low-wage sectors that Soss, Fording
and Schram track.30 Not, that is, until the introduction of a new welfare
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policy in the 1990s simply eliminated benefits for most recipients.
    Soss, Fording and Schram think that the policy introduced in 1996 created
a welfare regime of supervision and discipline, one that stresses the civic
primacy of the market roles of consumer, worker and customer, and imposes
those roles through state-level programs organized according to a business
model, and indeed incorporating businesses into the bureaucracy by means
of contracts for administering parts of the program.31 They may be right that
something quite new is at work here in the eager adaptation of a business
model by welfare bureaucracies. What may be more important, however,
is the public celebration by the welfare establishment of the business model
and the noisy application of wage work imperatives to the mothers of young
    The recession has now prompted further cutbacks in welfare programs.
Because cash assistance has been so crippled by welfare reform, the federal
food stamp program became very important in providing assistance to the
poor. The program, which has been renamed the ‘Supplemental Nutritional
Assistance Program’, was boosted by stimulus funds provided in the
2009 Recovery Act, and benefits temporarily rose in that year and so did
participation, which increased from 34.4 million people to 40.8 million,
most of whom were below the poverty line.32 That program has been the
target of repeated attempts at cuts by the Congress, including attempts to tap
the program’s funds for farm subsidies, and now an effort is under way to
deny food stamps to any family that includes a worker on strike.33
    But the biggest setbacks in assistance programs are occurring on the state
and local levels. The developments which have made the federal arrangement
of American governance so important in the policies that affect the poor
deserve note. First, in the 2010 midterm elections the Republicans made
large gains in the state capitols, and they are using their new majorities to
continue to cut state taxes on business and the wealthy, invoking the mantra
of ‘job creation’. As a result, since states usually cannot legally run deficits,
cuts in assistance programs to the poor and the unemployed seemingly
become necessary. Moreover, the supplemental federal funds for TANF that
were included in the Recovery Act of 2009 are running out. Thus the states
have been the stage for a kind of manufactured austerity, a seeming structural
imperative resulting from both the accumulation of past policies such as
recurrent tax cuts for business and the affluent, and the complex allocation
of authority in the federal system. I should also note that federalism in the
American system has always nurtured the business strategy of threatening
to exit, to move across the state line (or across national borders) if their
policy demands were not met. In response, states are cutting the TANF

caseload and benefit levels and shortening lifetime limits on assistance. The
percentage of single mothers receiving benefits fell from 16 per cent in 2001
to 11 per cent in 2007 and then to 10 per cent in 2010.
   The mechanisms through which this was accomplished are not unfamiliar.
In New York City, the onerous application process introduced with
welfare reform includes ‘two interviews, fingerprinting, presumptive fraud
investigations, home visits conducted by case investigators and mandatory
workforce orientations and up-front job search activities’.34 No wonder
that the rate at which applications are denied, usually on the grounds of
noncompliance with one or another of the unbelievably complex program
rules, creeps upward as the recession continues. Those denied face eviction
and homelessness, food insecurity and health problems. Meanwhile,
unemployment insurance, basically a state program supplemented by
emergency federal provisions for the longer-term unemployed, is also under
attack by the states. Indeed, some states never accepted the federally funded
long-term insurance extensions.35 Michigan has already reduced the state-
paid unemployment benefit from 26 to 20 weeks, and Florida followed
suit despite a state unemployment rate of over 11 per cent by reducing
state benefits to 23 weeks. Some four million workers have run out of all
unemployment benefits.36 A hotel housekeeper in Indiana, a mother with
four children, describes the parallel changes in her working conditions:
‘When I started 10 years ago we’d clean 14 to 15 rooms a day. Now we
clean 40…. Its always run, run, run. I don’t eat lunch anymore. If I don’t
finish in time, they’ll cut my hours the following week’.37
   There are also signs on the horizon that, as the fiscal problems created
by tax cuts and recession shortfalls roll through the federal system, deeper
organizational changes to facilitate spending cuts are being contemplated.
State and local governments are both the single largest employer in the US
and the main providers of a range of social supports. Fiscal stresses are an
opportunity to attack on both fronts. The New York Times reported that
state policy makers are ‘working behind the scenes to come up with a way
to let the states declare bankruptcy and get out from under crushing debts,
including the pensions they have promised retired public workers’.38 And
some states are moving to create arrangements for ‘emergency financial
management’ that are reminiscent of the state takeover of New York City
finances during the fiscal crisis of 1975-76.39
   These are not random moves. To the contrary, the path has been prepared
by groups like the American Legislative Exchange Council, which claims a
membership of 2,000 state legislators and sees the recession as an opportunity
to move forward on its mission of shrinking government, lowering taxes,
and promoting free market fiscal policies.40
                                   THE NEW AMERICAN POOR LAW              117

                      POLICY AS PROPAGANDA
In the 1960s, the poor – usually personified in the welfare mother (who
became Ronald Reagan’s imaginary welfare queen by the 1980s), or the
homeless vagrant, or the crack addict – emerged as a central reference
in American political discourse. At first, this was largely the result of the
equation of poverty, and liberal programs to ease poverty, with race and
the indulgence of Blacks, an equation made easier by the fact that so
many Blacks were indeed poor, and that Black insurgency had prompted
the Great Society programs to ease poverty. The Republican strategy of
stirring up racial antagonisms to wean white southern Democrats and the
white northern working-class voters away from their traditional Democratic
allegiances was perhaps obvious. Nor was this just a matter of campaign
appeals. The organized Right, including rightwing foundations, politically
engaged corporate leaders and the Christian Right, built a vast propaganda
machine that wove together poverty, race and sex in appeals that helped to
incite right-wing populist movements for four decades.41
    The growing complexity of governance makes the public acutely
susceptible to propaganda, especially propaganda that takes the form of
stories that give simple explanations, usually pointing to particular villains
who are ostensibly to blame for what is going wrong in their society. After
all, it is nearly impossible to decipher what is going on in the centres of
power. Can the public track debates about ‘credit default swaps’ or ‘debt-
to-GDP ratios’ or can they disentangle proposals for health care reform or
financial regulation? Stories, slogans and sound bites can make a rough sense
of a very complicated, even inscrutable, political world. But it was by no
means the message machine alone that made the poor a target. Government
policies and the bureaucrats and politicians that hover over them create a
reality through their design and communication about public programs. In
other words, government programs are themselves also a message machine.
    I can make my point easily by pointing to the program called social
security, or more accurately Old Age Survivors and Dependents Insurance.
The program has only superficial resemblance to the private insurance
policies that most people have been led to think of when they think of social
security. An insurance policy is an individual contract where regular fees
accumulate to guarantee payments when the event insured against occurs.
Social security taxes do not accumulate to be paid out when old age or
disability strikes. Benefits to the aged or disabled are drawn from the payroll
taxes of current workers. The reformers of the 1930s were eager to define
their program as a nationwide insurance program because they thought that
people accustomed to private insurance would find that more appealing,

more ‘American’. They probably were right, at least in the shorter run.
After all, social security is so popular that it has foiled a series of attempts to
privatize it. But the price has been that Americans don’t understand that the
program they love is a government venture that collectivizes risk and is even
modestly redistributive.
   In a curious commentary on the success of the social security deception,
Stuart Butler and Peter Germanis, both from the Heritage Foundation,
published an article in 1982 on how to ‘prepare the political ground’ for the
privatization of social security in the face of the ‘political power of the elderly’
which ‘will only increase in the future’. Their article, entitled ‘Achieving a
“Leninist” Strategy’, proposes a series of incremental changes that will benefit
and attract the support of the financial and business community in particular,
while assuring the elderly that their benefits will remain intact, meanwhile
expanding Individual Retirement Accounts as a private prototype, and
requiring the Social Security Administration to establish individual accounts
revealing ‘the inter- and intra-generational distribution that occurs under the
current system’. The elderly ‘might then come to realize that they have not
purchased an earned annuity but instead are receiving a tremendous welfare
subsidy’.42 Or perhaps the elderly would then realize that they also were
‘dependent’ on a collective, and governmental, effort. In any case, program
as propaganda is clearly a game that both the Right and the Left can play.
   Social security has provided a measure of economic security for many
people, and has dramatically reduced old age poverty, so one might applaud
the shrewdness of the policy experts who designed the program to mislead
the public. However, many policies that are not so benign, that work to the
benefit of the better-off, or promote the profitability of particular industries,
are also designed to mislead the public, largely by hiding the policies from
view. Suzanne Mettler sees these policies as part of the ‘submerged state
… [which] eludes most ordinary citizens: they have little awareness of its
policies or their upwardly redistributive effects, and few are cognizant of
what is at stake in reform efforts’. Federal guarantees to banks for student
loans, tax-deferred savings accounts, home mortgage interest deductions are
examples. Mettler reports the remarkable finding that majorities of those
who enjoy each of these government benefits think that they have not used
a government social program.43
   Not so with programs that reach the poor. These programs are typically
very visible, the targeted beneficiaries (or victims) are usually loudly
announced or more likely denounced by politicians, a good many people
know or think they know about the programs, indeed often seem obsessed
with them, and so do most of those who benefit know they have used a
                                    THE NEW AMERICAN POOR LAW              119

government social program. Mettler reports that in 2008, large majorities
of those who benefited from social security for the disabled, supplemental
security income, Medicaid, welfare, subsidized housing and food stamps
knew in each case that they had in fact used a government program.44
Note for example that the welfare-to-work ‘demonstration’ programs that
preceded the elimination of AFDC in favour of TANF, and the state TANF
programs as well, often made the participating poor very visible indeed,
outfitting them in orange day-glow vests as they picked up trash in the parks
or on the parkways.
                       PENALIZING THE POOR
The criminal justice system is at least as visible. Indeed, beginning in the
1960s, the problem of law and order became a central theme in electoral
politics, a theme invoking a Durkheimian drama about race, poverty,
deviance and punishment. I said earlier that some of this can be traced to the
Republican electoral campaigns of the 1960s which featured rhetoric about
the poor, welfare, and crime as virtual synonyms for race and especially
for Blacks. Over time, poverty politics resulted in first the steady erosion
of safety net benefits, and then the overhaul of the main cash assistance
program. Parallel to these developments, criminal sentencing became much
harsher, especially but not only in connection with ‘the war on drugs’ and
mandatory sentencing policies. Millions of men, most of them minorities,
have been incarcerated. Even after serving their sentence or sentences, they
are permanently stigmatized. They are usually effectively stripped of their
right to vote, diminishing the importance of the African-American vote
overall, and since they are unlikely to secure stable employment, they are
consigned to the economy of the streets. Douglas Glasgow describes the

       Being broke, hustling, jiving, stealing, rapping, balling; a fight, a
       bust, some time; no job, lost a job, a no-paying job; a lady, a baby,
       some weight; some wine, some grass, a pill; no ride, lost pride,
       man going down, slipping fast, can’t see where to make it; I’ve
       tried, almost died, ready now for almost anything.45

   The expansion of the penal system that accompanied welfare reform is
central to the argument made by Loic Wacquant. He sees the prison as an
analogue to the ghetto, which also warehouses and marginalizes populations.
‘[T]he poverty of the social state’, he writes, ‘against the backdrop of
deregulation elicits and necessitates the grandeur of the penal state’.46 And

he thinks the creation of the penal state is propelled by the political logic
of neoliberalism, ‘namely the construction of a post-Keynesian, “liberal-
paternalistic” state suited to institute desocialized wage labour and propagate
the renewed ethic of work and “individual responsibility” that buttress
it’.47 Much of what Wacquant has to say about the penal system is true. It
is huge, processing many millions of people, most of them poor minority
men. It is expensive, absorbing ever larger shares of public budgets. And
the expansion of the system has been rapid and precipitous. Still, I wonder
about the economic logic, or whether there is any unitary logic propelling
the expansion of the penal system? And does that logic in fact reflect the
imperatives of neoliberalism? In systemic terms, is massive incarceration
logical at all?
    Clearly there is or was an electoral logic. Much of the fuel that fed the
drive for tough drug laws, mandatory sentencing, and prison construction was
generated by electoral politics, and particularly by the Republican strategy
mentioned earlier of demonizing African-Americans in order to draw white
voters away from the Democratic party with which Blacks had come to be
associated. Some of that played itself out in national politics, and was evident
in law and order initiatives as early as the Nixon administration. It also
came to be mimicked by the Democrats. Bill Clinton used his 1994 State of
the Union address to advertise his support of ‘three strikes and you’re out’
legislation which condemned repeat offenders, including non-violent ones,
to lifetime imprisonment, and then threw his support behind the Violent
Crime Control and Law Enforcement Act.48 Moreover, the electoral uses
of crime and punishment were by no means confined to national politics.
State prisons grew as candidates in gubernatorial races jumped into the fray
trying to take advantage of the backlash politics fostered by national races
by making campaign promises about tough anti-crime initiatives and prison
building projects. Indeed, without the fuel of electoral contests organized
around the backlash, it is hard to imagine that incarceration would have
spiralled up as it did.
    But I disagree with Wacquant’s argument that the penal system functions
much like welfare or workfare ‘to push its clientele onto the peripheral
segments of the deskilled job market... continually (re)generating a large
volume of marginal laborers who can be super- exploited at will’. The
evidence we have about the actual consequences of incarceration does not
support this explanation. Quite aside from the vast budgets commanded
by the penal system which could of course be directed to arguably more
successful training programs, are the wasted people and wasted labour that
result from mass incarceration in fact functional for neoliberal labour markets?
                                   THE NEW AMERICAN POOR LAW              121

A prison record hardly equips those released for wage labour, desocialized
or otherwise. One-third of released prisoners are reincarcerated within six
months, and nearly half within a year.49
   There is another grim possibility, that mass incarceration reflects the fact
that the neoliberal labour market, having already incorporated women and
immigrants on its own terms, and with vast numbers of potential workers in
the southern hemisphere and China ready to be recruited with a click of the
mouse, simply has little use for rebellious African-American men.

I think we are at a pivotal moment, not only in the United States but also
across the planet, if only because what happens in the US has widespread
repercussions. Even putting aside the ‘end-times’ wonderings about climate
change, food scarcity and nuclear disaster, the neoliberal juggernaut in the
US is on a roll, calling for union busting state laws, ever greater clawbacks
in the form of tax cuts for business and the affluent, and budget cuts for
everyone else, but especially for the worst-off, coupled with court-rulings
that open the electoral system even wider to the influence of money while
other changes are introduced into electoral administration that make voting
more difficult for the growing populations of naturalized citizens, youth,
and the poor.
    Still, the corporate wealthy have been on a roll before, and they have
been slowed, and in some respects even reversed, by the rise of protest
movements that threatened to make the factories, the cities, and even the
country ungovernable. Maybe the sheer boldness of the business Right,
encouraged by their Tea Party allies, is a kind of overreach, and the sheer
bravado of their demands is making evident what the Left has failed to
make evident. This is the hope of Wisconsin, when thousands of students,
workers, and community sympathizers gathered and occupied the capital
to protest the right-wing Governor’s proposals to cut social spending by
roughly the same amount as business taxes had been cut the previous month,
adding for good measure a proposal to sharply limit the collective bargaining
rights of public sector unions and threatening to call out the National Guard
if the unions made trouble. Wisconsin does, I think, point the way, but it’s
also the case that in Wisconsin the protestors have not yet won and, in the
aftermath of the protests, the Wisconsin Senate is actually considering the
reversal of child labour laws.
    The juggernaut will be hard to stop. It will take a bigger and bolder
movement than Wisconsin and, both for moral and strategic reasons, it
must include the worst-off whose circumstances are so closely bound to the
circumstances of working people generally. So far, the rhetoric of resistance

is uncomfortably fastened on the idea of saving the ‘middle class’. Leaving
aside that what is meant is the working class, a movement large enough and
threatening enough to roll back the juggernaut will have to be inclusive.
Most especially, it will need the armies of poor women, African-Americans
and Latinos who are the foil for the broader attack on working people. Our
future depends on it.


1     See Greg Kaufmann, ‘US Poverty: Past, Present and Future’, The Nation, 22
      March 2001; Kathryn Ann Edwards, ‘Another Look at Poverty in the Great
      Recession’, Economic Policy Institute, 5 January 2011, available at http://
2     The extrapolation is based on the known relationship between the
      unemployment rate and the poverty rate. See Isabel V. Sawhill, ‘An Update to
      “Simulating the Effect of the ‘Great Recession’ on Poverty”’, The Brookings
      Institution, 7 October 2010.
3     On female poverty see Heidi Hartmann, ‘Women, the Recession, and the
      Stimulus Package’, Dissent, 56(4), pp. 42-47.
4     Steven Pressman and Robert H. Scott III, ‘Consumer Debt and Poverty
      Measurement’, Focus, Institute on Research on Poverty, Summer 2010.
5     See Women’s Legal Defense and Education Fund, ‘Reading Between the
      Lines: Women’s Poverty in the United States’, 2009, available at http://www.
6     See Pamela Wiepking and Ineke Maas, Gender Differences in Poverty: A Cross-
      National Research, Luxembourg Income Study Working Paper, No. 389,
      October 2004.
7     Quoted in Tom Robbins, ‘Eat the Rich’, The Village Voice, 2 February 2011;
      see also James Parrott, ‘As Incomes Gap Widens, New York Grows Apart’, The
      Gotham Gazette, 18 January 2011.
8     See LaDonna Pavetti, Danilo Trisi and Liz Schott, ‘TANF Responded
      Unevenly to Increase in Need During Downturn’, Center on Budget and
      Policy Priorities, 25 January 2011.
9     Legal Momentum, ‘Poverty Rates for Single Mothers are Higher in the U.S.
      than in Other High Income Countries’, June 2011, available at http://www.
10    See Doug Henwood’s review of a series of studies by the Pew Charitable
      Trusts Economic Mobility Project, ‘Mobility Today’, Left Business Observer,
      132, 24 April 2011.
11    See Economic Policy Institute (EPI), The State of Working America 2011,
      available at
12    Catherine Rampell, ‘Higher-Paying Jobs Lost, but Lower-Paying Jobs Gained’,
      Economix, 23 February 2011.
13    Catherine Rampell, ‘Companies Spend on Equipment, Not Workers’, New
      York Times, 10 June 2011. The replacement of workers by machinery and
      new organizational methods continues a several-decades trend, as Kim Moody
                                       THE NEW AMERICAN POOR LAW                   123

     documents in U.S. Labor in Trouble and Transition, London: Verso, 2007.
14   EPI, The State of Working America 2011.
15   See Jamie Peck, Workfare States, New York: The Guilford Press, 2001, p. 56.
16   Sidney Webb and Beatrice Webb, English Poor Law History Part I, The Old Poor
     Law, Hamden: Archon Books, 1963, p. 29.
17   Monthly labour force participation rates have declined slightly for men, but
     have risen robustly for women in the past three decades. See Hartmann,
     ‘Women, the Recession, and the Stimulus Package’, Figure 3, p. 45.
18   See Deepak Bhargava et al., ‘Battered by the Storm: How the Safety Net is
     Failing Americans and How to Fix It’, Institute for Policy Studies, December
     2009; The Women’s Legal Defense and Education Fund, ‘Single Mothers Since
     2000: Falling Further Down’, Legal Momentum, 13 January 2001, available at
19   ‘Women Bear Brunt of Economic Crisis’, Minority News, 6 May 2011.
20   See Andrew Grant-Thomas, ‘Why Are African Americans and Latinos Under-
     Represented Among Recipients of Unemployment Insurance and What
     Should We Do About It?’ Poverty and Race, 20(3), May/June 2011.
21   The Economic Policy Institute reported in 2005 before the recession that
     workers getting the minimum wage earned less than a third of the average
     hourly wage. See Lawrence Mishel, Jared Bernstein, and Sylvia Allegretto,
     State of Working America 2008/2009, Ithaca: Cornell University Press, 2009.
22   See Eric Sterling, ‘Time for a Change: 40 Years of Drug War Hasn’t
     Worked’, Alternet, 15 June 2011. Sterling was counsel to the House Judiciary
     Subcommittee and had the main responsibility for the writing of the law.
23   Agamben’s discussion of ‘bare life’ that is included in the legal regime for the
     purpose of being excluded is pertinent here. See Julie A. Nice, ‘Poverty as
     an Everyday State of Exception’, in Shelley Feldman, Charles Geisler, and
     Gayatri A. Menon, eds., Accumulating Insecurity: Violence and Dispossession in the
     Making of Everyday Life, Athens: University of Georgia Press, 2011; see also
     Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, Stanford: Stanford
     University Press, 1998.
24   This was not the first time that a focus on poverty and relief policy was
     paired with a focus on crime. During the late eighteenth and early nineteenth
     centuries in England, relief expanded in response to protests precipitated by
     enclosure and modernizing changes in the terms of rural labour. But so did
     repression, as the Parliament moved to elaborate the criminal codes, and troops
     were deployed across the country. See John Lawrence Hammond and Barbara
     Bradby Hammond, The Town Labourer, 1760-1832: The New Civilization,
     London; Longmans, Green & Co., 1917, pp. 37-94.
25   See Sheldon Danziger, ‘Budget Cuts as Welfare Reform’, American Economic
     Review, 73(2), 1983, p. 65.
26   See Philip Kretsedemas and Ana Aparicio, eds., Immigrants, Welfare Reform,
     and the Poverty of Policy, Westport: Praeger, 2004; see also Amanda Levinson,
     ‘Immigrants and Welfare Use’, Migration Policy Institute, August 2002.
27   See Audrey Singer, ‘Welfare Reform and Immigrants: A Policy Review’,
     Brookings Institution, 20 June 2011; see also Audrey Singer, ‘Immigrants,
     Welfare Reform and the Coming Reauthorization Vote’, Migration Policy
     Institute, August 2002.

28    Stephen Pimpare, ‘In the Wake of Reforms: Unclear Outcomes and the State
      of Welfare Policy Analysis, 1996-2008’, unpublished manuscript, Silver School
      of Social Work, New York University.
29    Joe Soss, Richard C. Fording and Sanford F. Schram, Disciplining the Poor:
      Neoliberal Paternalism and the Persistent Power of Race, Chicago: University of
      Chicago Press, 2011.
30    Ibid., ch. 4.
31    See Sanford F. Schram, Joe Soss, Linda Houser and Richard C. Fording,
      ‘The Third Level of US Welfare Reform: Governmentality under Neoliberal
      Paternalism’, Citizenship Studies, 14(6), 2010, pp. 739-754.
32    See FRAC Alerts, 26 April 2011, The Food Research and Action Center,
      available at
33    Editorial, New York Times, 25 March 2011.
34    Federation of Protestant Welfare Agencies, ‘Policy Matters’, January 2011.
35    These states are Arkansas, Louisiana, Mississippi, Montana and Utah and
      Arizona is currently resisting a renewal of federal long-term benefits. See
      Catherine Rampell, ‘For Want of a Word, Arizona’s Jobless Lose Checks’,
      New York Times, 18 June 2011.
36    See William M. Welch, ‘Long-term Jobless See Reduction in Benefits’, USA
      Today, 17 May 2011.
37    Quoted in Editorial, ‘Unfair Working Conditions: Blame Greed, Not the
      Economy’, Los Angeles Times, 11 June 2011.
38    Mary Williams Walsh, ‘A Path is Sought for States to Escape their Debt
      Burdens’, New York Times, 20 January 2011.
39    See Rania Khalek, ‘Coup d’état Coming Soon to a City Near You’, Common
      Dreams, 20 April 2011, available at
40    See Leonard Gilroy and Jonathan Williams, eds., State Budget Reform Toolkit,
      Washington, DC: American Legislative Exchange Council, 2011.
41    See Lewis H. Lapham, ‘The Tentacles of Rage’, Harper’s Magazine, September
42    Stuart Butler and Peter Germanis, ‘Achieving a “Leninist” Strategy’, Cato
      Journal, 3(2), Fall 1983.
43    See Suzanne Mettler, ‘Reconstituting the Submerged State: The Challenges of
      Social Policy Reform in the Obama Era’, Perspectives on Politics, 8(3), September
      2010, Table 3, p. 809.
44    Ibid., p. 809.
45    Douglas Glasgow, The Black Underclass: Poverty, Unemployment, and the
      Entrapment of Ghetto Life, San Francisco: Jossey-Bass Publishers, 1980, p. 104.
46    Wacquant, Loic, ‘Ordering Insecurity: Social Polarization and the Punitive
      Upsurge’, Radical Philosophy Review, 11(1), Spring 2008, pp. 9–27.
47    See Loic Wacquant, ‘The Place of the Prison in the New Government of
      Poverty’, in Mary Louise Frampton, Ian Haney Lopez and Jonathan Simon,
      eds., After the War on Crime: Race, Democracy, and a New Reconstruction, New
      York: New York University Press, 2008, pp. 23-37.
48    See Timothy Black, When a Heart Turns Rock Solid, New York: Pantheon
      Books, 2009, p. 217.
49    Ibid., p. 268.