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

AuthorBrittany Friedman
DOI10.1177/1043986220965040
Published date01 February 2021
Date01 February 2021
Subject MatterArticles
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

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