Just Surviving

In the U.S. popular imagination, working is positive. Workers are independent, noble people who deserve to be a part of our society. Workers are contrasted with criminals: these are people, we are told, who choose not to work like the rest of us; they are selfish and evil, deserving of punishment and exclusion from broader society. But this description is incomplete and unfair, and it misses the fact that so much crime is, in fact, work undertaken in the name of survival.

Consider the story of Robert Ibarra, a New York City resident who stole a sandwich. Government assistance—a stipend and food stamps—had allowed him to cover his basic expenses from month to month. However, an unexpected expense had then brought him “down to zero.” Luckily, he was able to avoid jail time for the offense. But what will keep this scenario from repeating for him down the road? And what about others like him who want to stay out of trouble, but have limited options once they’re out of money and have no other supports? Studies show that approximately 56 percent of Americans do not have the savings to cover a $1,000 emergency expense; 32 percent would be unable to cover a $400 expense without going into debt.

In my article “Survival Labor,” I explore survival crimes, which I define as criminalized activities undertaken to survive extreme financial hardship and the inability to otherwise meet basic needs such as food or shelter. Marginalized groups are often pushed into such survival strategies. I argue that these should be considered a form of labor, opening the potential for such activities to be protected under the “right to earn a living” or otherwise addressed outside of the carceral system. I don’t think governments should be completely unable to regulate occupations: government needs options for passing health and safety regulations with relative ease. (I don’t want laced weed from my dispensary.) But at the same time, the criminalization of survival strategies strikes me as particularly blind to reality, and it does not make us safer.

There’s a similar legal theory being advanced by civil libertarians in an effort to strike down government regulations such as occupational licensing requirements—although courts have been quick to clarify that only “lawful” callings are protected. This limitation is frustrating because, very practically, whatever is lawful or unlawful is merely a function of what laws we decide to pass or not pass, repeal or leave on the books. There is often an assumption that whatever is already criminalized is harmful, but I think that analysis misses an important step.

Consider the jobs that are legal, but have serious moral, health, and safety-related implications. Payday lending operations prey on those with low and variable incomes. Entire industries focus on producing plastics, pesticides, and fossil fuels, which poison the environment and living beings, including humans. Paparazzi stalk and harass others for a living. Executioners are essentially murderers on the government’s payroll.

The process of criminalization can be understood as an arbitrary and discriminatory means of maintaining our social hierarchies. Why is it that your neighborhood drug dealer is a criminal who must operate underground, but the beanie-wearing hipster in the dispensary on the corner gets to put on their resume that they are a full-time “budtender”? As scholars have shown, many activities that might otherwise be considered work are criminalized due to racism, classism, ableism, and society’s general desire to be free of undesirables.

People who have been criminalized in this way do not offend because they lack a sense of discipline: they are disproportionately more likely to be put in positions where they have no other choice. The state plays an “offender” role because of the way its policies have excluded minorities and low-income people from economic security and political self-determination. In other words, racially discriminatory policies—such as redlining, exclusionary zoning, and racial violence—lock racialized people into “the most dispossessed and exploited communities.” Consequentially, arrest and prosecution rates do not reflect who commits the most or worst crimes, but who is most likely to be surveilled and caught.

Furthermore, government-sponsored policies are not the only barrier to economic security. Discrimination by private actors also perpetuates economic insecurity. Discrimination against those with criminal records places a barrier to accessing future jobs in the formal sector, making engagement in survival crimes even more necessary. Employment discrimination still disproportionately affects transgender and gender-nonconforming folks, racial minorities, those of a disfavored caste, and women. Thus, a web of private discrimination, government discrimination, and institutions designed to benefit privileged groups and exclude subjugated groups enforce economic instability on marginalized people.

To construct a complete narrative around our conception of work, then, we must consider how our country’s history of subjugation has created the need for an underground economy. Qualitative research demonstrates that people who commit survival crimes have a desire to meet their needs as well as abide by the law, but the aforementioned hurdles might make abiding by the law impossible and force folks to engage in survival crimes in order to meet their needs. This was true in the mid-nineteenth century, when formerly enslaved people, recent immigrants, and low-income whites all fought to break into and stay in any kind of wage-earning labor (whether legal or not) to make ends meet. It remains a reality today.

Other scholars have explored whether defying the law is an acceptable form of resistance to oppression in a society designed to disempower marginalized people; I do not tackle those ideas here. Instead, I suggest an approach through which the legal profession might help prevent survival crimes (which happen regardless of whether such actions are socially acceptable) by understanding why people commit them. Given the criminalization of certain paths to earning income or acquiring necessities, one way to do this is by expanding our conception of viable labor.

Currently, there is no legal definition for “work.” In “Survival Labor,” I propose a definition that expands our understanding to include criminalized labor. I outline three things that, alone or together, can categorize an activity as work: first, it generates income; second, it allows individuals to pursue self-sufficiency; third, it allows individuals to fulfill societal expectations of providing for or caring for dependents. If an activity meets at least one of these conditions (and usually it is more than one), I argue that it should be understood as a form of work, potentially eligible for greater legal protection—even if it’s currently criminalized.

People work to earn money. Many survival crimes generate income: people exchange sex, drugs, and stolen goods for money, or sell legal goods or services without proper licensure. Most do not report this “illegal” income on their taxes (as is required by the IRS), which is also a crime. But with this money, they can pay for housing, food, and other necessities.

While federal and state laws criminalize a variety of survival strategies, there are also laws that seem to anticipate the existence of criminalized labor. For example, the Fair Labor Standards Act (FLSA) is a federal law that protects employees against wage and hour violations, even if the activity is illegal under federal law. In one example, a court of appeals held that a marijuana dispensary in Colorado still had to pay overtime to one of its employees—a requirement under the FLSA—despite the sale of cannabis being outlawed at the federal level. Another key Supreme Court case recognized the existence of a market in cannabis (thus allowing the federal government to regulate that market using the Commerce Clause), even though the market is illegal. These examples and more lead me to categorize transactional or market-based criminal activities as work, because federal law recognizes the labor and income from illegal sources.

Similarly, survival crimes might include the displacement of the need to purchase necessities, which is an attempt to be self-sufficient by obtaining essentials elsewhere. The idea of self-sufficiency comes from critiques of the welfare system that address the need to displace the need for state support. Such critiques also tend to recognize the value of unpaid labor in advancing one’s self-sufficiency. One can displace the need for government assistance by watching their own children, as opposed to paying for childcare. One can grow their own food, as opposed to buying it from the store. This is not an argument that individuals should be forced to do either of these things. Rather, the point is that by recognizing different ways in which one displaces their need for money from an external source to meet their needs, they can also advance their self-sufficiency. Through this analysis, we can consider individuals who dine and dash, steal, or commit other non-income-based survival crimes as still engaging in a form of labor.

Finally, work is clearly not just about resources. We often associate work with values like respect and dignity. Some scholars highlight work’s importance on self-improvement, discipline, and structure. Others talk about the importance of the independence and flexibility that come with gainful employment, and it’s important not to overlook the benefits of an excellent wage to help people thrive and not just survive.

These values also translate to expectations, like the societally defined expectations that push people to work. Traditional gender roles, for example, designate men as breadwinners and women as caretakers for the home and children. If folks who experience such pressure are fulfilling their societally imposed duties, whether through lawful or criminalized means, the activities they engage in should be considered work—particularly when the structural barriers to gainful, legal employment put people in positions where they have no choice but to engage in survival crimes. Thus, individuals who engage in survival crimes that meet at least one of the proposed criteria should be perceived as engaging in survival labor.

Robert Ibarra stole a sandwich, but that’s not all he did. Like countless others in the years before and since his survival crime, Ibarra did what was necessary to avoid starvation. Given the reality of many interlocking barriers to economic security, he engaged in criminalized activity to pursue his self-sufficiency. His theft, whether an acceptable act of resistance or not, meant he could survive one more day. He engaged in survival labor by displacing his need for money to buy food.

Was what he did wrong? Maybe. Maybe not. Maybe he jeopardized the shopkeeper’s need for economic security. Maybe he stole from a market large enough to cover the losses with insurance. However, that question is different from whether what he did was work. If a cop is working when they wrongfully arrest someone, depriving that person of their liberty and injuring them in the process; if appraisers are working when they undervalue Black homes, robbing them of equity; does the wrong make what they did no longer work? Is it only work because the individual happens to be receiving wages from a government entity or private company?

If harm and morality are the real questions at play, then we should only be asking deeper questions about those issues after our definition of work acknowledges the role of state-sponsored subjugation, discrimination by private parties, and the crushing harm of criminal penalties. Such an exploration is hard. It’s deeply complicated, often overwhelming, and emotionally taxing. It is made all the more difficult by court precedent that refuses to hold legislatures responsible for failing to take affirmative actions to advance economic liberty and security across the board. It’s also necessary to better promote safety and economic security for all. Yes, it’s hard. Yes, it’s complicated. But I’d say that seriously engaging with these complex questions is all in an honest day’s work.

_{Image: Adapted from Thomas Claeys / Unsplash}

Contributors

Yvette T. Butler Yvette T. Butler is Associate Professor of Law at Indiana University Bloomington.

Topics

• Law & Policy

Tags

• carceral labor
• criminalization
• decriminalization
• law and policy
• punishment theory