Unveiling the Necrocapitalist Dimensions of the Shadow Carceral State: On Pay-to-Stay to Recoup the Cost of Incarceration

• Author: Brittany Friedman
• Published date: 01 February 2021
• DOI: 10.1177/1043986220965040
• Date: 01 February 2021
• Subject Matter: Articles

https://doi.org/10.1177/1043986220965040

Journal of Contemporary Criminal Justice

2021, Vol. 37(1) 66 –87

© The Author(s) 2020

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DOI: 10.1177/1043986220965040

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Article

Unveiling the Necrocapitalist

Dimensions of the Shadow

Carceral State: On Pay-to-

Stay to Recoup the Cost of

Incarceration

Brittany Friedman1

Abstract

The expansion of monetary sanctions constitutes what Beckett and Murakawa

describe as the “shadow carceral state,” where covert penal power is expanded

through institutional annexation by blending civil, administrative, and criminal legal

authority. A growing body of work on monetary sanctions has begun to dissect covert

penal power by tracing increased civil and administrative pipelines to incarceration,

civil financial alternatives to criminal sanctions, and innovations to generate criminal

justice revenue. However, institutional annexation and innovation in the form of

contemporary pay-to-stay practices remain understudied and undertheorized. In this

article, I first examine statutes and practices to theorize pay-to-stay as exemplary of

the shadow carceral state—an outcome of legal hybridity and institutional annexation

legitimated using the legal construction of “not punishment,” which frames monetary

sanctions as non-punitive. Second, I expand Beckett and Murakawa’s framework to

argue pay-to-stay practices reveal how the shadow carceral state compounds or

initiates the civil death of those charged. I broaden our notion of civil death to include

financial indebtedness to the shadow carceral state. I suggest covert penal power

expands through the accumulation of resources extracted from people marked

for civil death through criminal justice contact. Finally, I conclude that monetary

sanctions such as pay-to-stay reveal how the shadow carceral state expands covert

penal power through necrocapitalism, meaning institutional accumulation occurs

through dispossession and the subjugation of life to the power of death.

1Rutgers University, New Brunswick, NJ, USA

Corresponding Author:

Brittany Friedman, Department of Sociology, Rutgers University, 26 Nichol Avenue, New Brunswick,

NJ 08901, USA.

Email: b.friedman@rutgers.edu

965040CCJXXX10.1177/1043986220965040Journal of Contemporary Criminal JusticeFriedman

research-article2020

Friedman 67

Keywords

monetary sanctions, pay-to-stay, lawsuits, carceral state, necrocapitalism, civil death

Introduction

Monetary sanctions in the criminal justice system vary across jurisdictions with no

coherent set of laws or institutions tasked with governing their development or imple-

mentation (Harris et al., 2017). Applicable laws are most obviously found in criminal

and traffic codes, yet jurisdictions regularly mobilize civil and administrative codes to

satisfy criminal justice ends (Beckett & Murakawa, 2012). “Punitive civil sanctions

are rapidly expanding” such that “the features distinguishing civil from criminal law

become less clear” (Mann, 1992, p. 1798).

Facing monetary sanctions from multiple jurisdictions potentially fosters indebted-

ness to the city, county, and state at overlapping times, creating a nearly impossible

web to navigate (Martin et al., 2018). Competing penal logics such as rehabilitation,

retribution, incapacitation, and deterrence further clutter their interpretation, making it

even more difficult for penal actors and those ensnared within the criminal justice

system to make sense of their usage or purpose. Private entities profiting at various

“cost points” from those in contact with the criminal justice system further cloud the

landscape (Harris et al., 2019). When asked, people are often unable to answer basic

questions, such as how much they owe, to whom, and why (Harris, 2016; Pattillo &

Kirk, 2020), with monetary sanctions consequently functioning as a significant predic-

tor of social inequality (Harris et al., 2010) bolstered by a “hidden state” (Thurston,

2020). A multitude of monetary sanctions exist, from fines and restitution imposed at

sentencing, to user fees accumulated throughout system processing, serving as a key

source of criminal justice revenue (Fernandes et al., 2019; Martin, 2018, 2020; Sances

& You, 2017; U.S. Department of Justice, 2015).

Monetary sanctions are a prime example of what Beckett and Murakawa (2012)

describe as the “shadow carceral state,” where covert penal power is expanded through

the legal construction of “not punishment,” legal hybridity, and institutional annexa-

tion. The legal construction of “not punishment” refers to the process of framing stat-

utes and practices as non-punitive, even if they are employed punitively and/or have

punitive consequences. Legal hybridity is the blending of civil, administrative, and

criminal legal authority. Institutional annexation occurs when institutions that are not

officially recognized as penal significantly grow in their capacity to impose punitive

sanctions that extend criminal justice contact as a result of increased demand to fund

the criminal justice system through monetary sanctions.

A growing body of work on monetary sanctions has begun to dissect what could be

described as covert penal power by tracing increased civil and administrative pipelines

to incarceration, civil financial alternatives to criminal sanctions, and innovations to

generate criminal justice revenue. Covert, meaning the expansion of penal power is not

readily visible because it traverses and gains strength through the interlocking of social

institutions that are not explicitly conceived as criminal justice. This interlocking