Podcast with Yvette Butler: Survival Labor

This podcast episode accompanies the article from Professor Butler: Survival Labor.

Transcript

SPEAKERS

Professor Yvette Butler, Peter Mason

Peter Mason  00:00

The US Carceral system disproportionately harms racial minorities and people living in poverty. Penal abolitionist frameworks have helpfully reframed the conversation to foreground those harmful social consequences. But how do those consequences affect our understanding of work, and particularly work that is both criminalized and undertaken in order to survive?

Peter Mason  00:23

My name is Peter Mason, and you're listening to the California Law Review podcast. Our goal is to provide an accessible and thought provoking overview of the scholarship we publish. In today's episode, we will be discussing Survival Labor, a piece by Indiana University Maurer School of Law Professor Yvette Butler. This piece was published in Issue Two of Volume 112 in April 2024.

Peter Mason  00:49

Professor Butler, thank you so much for taking the time to talk with me today about your article.

Professor Yvette Butler  00:53

Thanks so much for having me. I'm excited to be here.

Peter Mason  00:56

To start, can you summarize your main arguments in this piece?

Professor Yvette Butler  00:59

My main argument is that the law essentially lacks a coherent definition of what work is. Whatever is criminal, like sex work or drug dealing, is denied legal status as work, and many folks say that those activities aren't legitimate forms of employment, but that has never made sense to me, because what is work and why are crimes not work? It takes real effort, planning and organization to earn money outside of the formal economy. So my main argument is that our understandings of work can and should include criminalized labor. I'll get into the three things that make criminalized activity work later on, and if at least one of these conditions are met, usually it's more than one, then I think we should understand the criminalized activity as a form of work that could be eligible for greater protection.

Peter Mason  01:49

What motivated you to write this article?

Professor Yvette Butler  01:51

A couple of things motivated me. So firstly, during the pandemic, it seemed like there was a brief period of time where the political will existed to decriminalize survival crimes and other offenses. So obviously, pre pandemic, we had the stories of people like Alton Sterling in 2016 who was killed in a police encounter when they encountered him for selling bootleg CDs. 2014 we had Eric Garner dying from the police choking him when he was selling loose cigarettes. So during 2020, when we had the pandemic, the murder of George Floyd, there was all of this, I think, political will around decriminalizing all sorts of offenses in order to avoid wrongful police killings of primarily black people. So I'd say that's the main motivation. But also, before academia, I worked with nonprofits, working with sex workers and victims of trafficking, and in spending a lot of time with folks living not just paycheck to paycheck, but assembling their livelihoods through a combination of monetary payments and bartering for food, shelter and other necessities, it was very clear how important of an issue this was.

Peter Mason  03:10

Your article begins by setting out a definition of survival crime that you subsequently work with to come to your conception of survival labor. Can you help set things up for listeners by explaining what survival crime entails on your account?

Professor Yvette Butler  03:21

Yeah, so survival crimes are something that I feel like a lot of people will describe, but we haven't necessarily had like a concrete legal definition of. So survival crimes are basically criminalized activities that one engages in due to extreme financial hardship in order to meet a basic need like food or shelter. And so examples are things like drug dealing, dining and dashing, theft, sleeping outside, trespassing, sex work and more. So there are 1,000,001 different activities that one might engage in to sustain their life that are also criminalized. If you're asking the question, Does this action help me to not die? Those are essentially survival crimes.

Peter Mason  04:06

Your work in re-articulating survival crime into survival labor is oriented around challenging dominant hermeneutical resources that frame popular understandings of crime and work. What exactly are hermeneutical resources?

Professor Yvette Butler  04:20

This article draws a lot from the branch of philosophy known as epistemology. And so very broadly, epistemology has to do with knowledge, what it is, how it's created, who gets to be seen as a knower and contribute valuable information and much more. Hermeneutical resources are this body of social knowledge, there are tools in a toolbox, if you will: things like vocabulary and grammar and language that we use to make our experiences intelligible to ourselves and others. One classic example is sexual harassment. So one of the examples I use in my article is, imagine you're at work and a male colleague jumps out from around a corner with his fly down, exposing himself. You cringe and speed rock around him, hearing him and others laughing. They call out: it's just a joke, don't be so sensitive. You might vent to friends and family about the experience. Some interpret the action as a joke, and others interpret the action as belittling and offensive. The interpretation is connected to the tools that society has developed to process those experiences. The law is also responsible for shaping our interpretation of those experiences. So with the development of scholarship, statutes, case law and regulations around sexual harassment, we have a whole legal language to understand this workplace exposure as problematic, unsettling and actionable harassment, instead of something that's just a joke.

Peter Mason  05:47

It seems like the tricky thing about hermeneutical resources is that there are lots of them available at any given time, which means that mismatches between those resources and the experiences they describe can create what you and philosophers term hermeneutical injustice. What is hermeneutical injustice and how does it relate to law?

Professor Yvette Butler  06:06

Continuing with the example of sexual harassment, so, women, for example, harassed in the workplace have long shared their own stories, terminology and other sort of interpretive tools to share their experiences. But when they did so, there are these sexist narratives of women that can distort their message. So what women communicated was devalued based on sexist ideas of women who report sexual harassment and sexual violence as liars, too sensitive, unable to take a joke or seeking retribution against somebody else. And so women's perspectives attributing meaning to their experiences were subjugated. So hermeneutical injustice is essentially this idea that one's social experience is obscured from more collective understanding because of some structural prejudice. Another example of this that I've addressed in more detail in another piece, Silencing the Sex Worker, is essentially that the law pathologizes all sex workers as broken, deviant victims, despite many reports from sex workers indicating that this is not the only experience of life in the sex trades; thus the law adopts this position by conflating prostitution with sex trafficking and statutes and legal opinions. And like you mentioned, there are multiple meanings out there, and like multiple community resources. So, some are shared by a dominant community, we usually call those dominant hermeneutical resources, but there are also alternate meanings, terminology, and other tools like I referenced before, by an alternate community, which may be subjugated depending upon what the circumstances are.

Peter Mason  07:49

With the concepts of hermeneutical resources and injustice set out, you delve into the hermeneutical resources that define work. You begin with courts treatments of the right to earn a living. Can you explain your analysis on this point?

Professor Yvette Butler  08:01

Sure. So, the reason that I'm going through all of this effort and digging into philosophy and everything to try and define work is that I argue that we actually don't have a static legal definition of work, so employment and labor law are more focused on the rules of engagement and contracts between employers and employees and on job sites. They don't set out to define what work is with any amount of specificity. And I'll talk about that a bit more later on. So such a definition of work might be impossible anyway, just because of how expansive work can be. The right to earn a living is essentially protection for individuals to enjoy some amount of occupational freedom and keep the fruits of their labor. As my works in progress explore, the right can be situated in several places, but has made some headway by libertarian advocacy groups under the 14th Amendment conception of liberty. So the way that I engage with this right in survival labor was really to ask what kind of work is eligible for protection under the right to earn a living. And courts have said the right protects, you know, quote unquote, common occupations or earning a, quote unquote, honest living. And spoiler alert, it's not actually clear from many of those court opinions what kinds of work are common or honest. So courts have said that such occupations, whether they're common or honest, must be lawful. So for example, there are a handful of cases from the early 1900s that said prostitution was not honest work. But there are no explanations as to why. But to me, I don't understand why lawful is the measure, because it seems to me that anything could be lawful or unlawful, just depending upon our political winds at the time. So what is it about criminalized labor that sets it apart from non criminalized labor? And again, what even is labor? And so this is where I go back to hermeneutical resources to figure out what our society considers work to be and what our society considers crime to be. I was curious whether work and crime, at least survival crimes, are aiming for the same goals, and wanted to see if they had similar characteristics such that it doesn't make sense to only protect one's engagement in legal employment.

Peter Mason  08:02

Your analysis also suggests three independently sufficient conditions that characterize work. You argue that characterizing work this way makes it possible to challenge dominant interpretations that separate work from crime. How do your characterizations of work enable that challenge?

Professor Yvette Butler  09:31

Sure, so, I'll first set out sort of the three conditions that characterize work, and then get into the hermeneutical resources that define work versus crime. So the three conditions that I think characterize work are really number one, the pursuit of self sufficiency. Number two, transactional, market-based activities. And three, meeting a societally defined caretaking and providing role. And that one in particular gets very detailed, and so when I get back to it later on, I'll try to keep it fairly short. So working is often tied to a set of binaries, like independence versus dependence, achievement versus failure, advancement versus stagnation, security versus insecurity and esteem versus shame. Dominant hermeneutical resources are quick to label people engaged in survival crimes with the negative binary term. Critical scholars have argued, in so much more depth than I can do in the short time that we have, that racialized and gendered conceptions of who is considered worthy of assistance is embedded into welfare policy and other areas of law. There are prejudiced ideas that black people, more than their white counterparts are responsible for their personal failings. Black people were seen to lack an innate hustle to make ends meet. There are also absentee black father stereotypes, but qualitative research has shown that sometimes fathers are absent when they are working multiple shifts or multiple jobs to make sure children have their material needs taken care of. Studies speaking with black men also find that rampant incarceration of black men is occurring due to their engagement in survival crimes to care for dependents. People who engage in criminalized activities are often seen as offenders, but the government also has a key role as offender because of the ways in which minorities have been excluded from economic security and political self-determination. Many scholars have detailed how the federal government and states have designed neighborhoods in ways that concentrate poverty in minority communities, how the criminal system is designed to subjugate minority communities, and how black and Hispanic people in particular suffer the collateral consequences of criminalization by being further locked out of the formal economy. And all of this makes engagement in survival crimes necessary. And I think that all of this history is a part of the analysis, and really looking at interviews with criminalized people as part of where we can suss out the alternate hermeneutical resources that are necessary to answer this question. And so from all of this, I tried to pull those voices of minorities, particularly black people, who explained why they engaged in crimes. Dominant resources say that people engage in crimes because they are immoral, evil and we should punish them. The dominant crime narrative paints people as selfish criminals and does not account for their desire to abide by the law and meet their needs. Subjugated resources, people labeled as criminals tell a much more robust story. Generations of state sponsored subjugation makes it extremely difficult to make ends meet without running afoul of the law. So my thought is, how do we protect and empower people trying to survive and do right by their dependence under a broader, shared definition of labor? And so taking all of that, that's where I came up with my three conditions they characterize work. The first one was self-sufficiency. So in the welfare context, work is about self-sufficiency, whether through earning income through an employer, panhandling, or displacing the need to buy food through subsistence farming, for example. Self-sufficiency can expand the language, concepts, and interpretive tools that we use to evaluate whether something is work, because one does not have to be earning money or earning money from an employer. Thus, criminalized activities still contribute to one's ability to be self sufficient, whether they are stealing or drug dealing, for example. Under the transactional category, this is where it gets intensely focused on things like constitutional law and tax. So, federal law regulates a variety of areas that do not preclude criminalized activity being seen as work. So for example, the Fair Labor Standards Act protects employees against wage and hour violations, even if what they are doing is illegal under federal law. So there's a 10th circuit case from 2019 where the Court held that a marijuana dispensary in Colorado still had to abide by the Fair Labor Standards Act, even though cannabis is still illegal under federal law. Tax law also requires reporting illegal gains as gross income on your tax returns. And there are several other examples that lead me to incorporate this definition of transactional and market-based activities is work, even if they are criminal, because federal law recognizes labor and income from illegal sources under certain circumstances. And then finally, the socially-defined caretaking and provider role. Like I said, this part is pretty dense. So, work is clearly not just about income or commerce. Dominant hermeneutical resources associate work with values like respect and dignity and more. Feminist scholars have illustrated the gendered assumptions behind tying work to income and the hierarchy of wage labor versus unpaid caregiving labor. There's a lot of pressure on men still to be breadwinners for their dependents, and for women to do what they must to care for dependents. And for black women and other women of color, that caretaking often comes with an expectation to provide. So it seems that as long as men and women are fulfilling their societal duties, even by committing a crime, those actions can be more epistemically intelligible if the definition of work is expanded to include fulfilling their societally defined providing and caretaking roles through survival crimes.

Peter Mason  16:58

In addition to work, your article also explores the hermeneutical resources that exist in abolitionist and transformative justice thinking. How can those resources, as you put it, improve the interpretive methods for survival labor?

Professor Yvette Butler  17:11

Penal abolition looks for accountability outside of the carceral system. It is concerned with the abolition of a society that could have prisons and that could have slavery. Abolitionists want to dismantle systems of domination like racism, sexism, ableism, sexual violence, and more, and not reproduce those systems within our sites of justice and accountability. Transformative justice was developed by activists of color in particular, to build support and safety for those harmed by violence and figure out how it came to be that such violence could occur in the first place, and how to stop it from happening again. And so, you know, some people think that penal abolition is about letting offenders go free without any consequences, but that's not true at all. It's really about asking how to address the needs of victims, including those who do not want to involve the carceral system in their definition of justice, and how do we make it so that no one is committing crimes in the first place; like, what needs are going unresolved that leads to the various harms that we see today. This work is ultimately about making alternate or subjugated perspectives intelligible to a broader audience. And in this part of my article, I tell a story about when I was a victim of a smash and grab, and why I support penal abolition and transformative justice. And perhaps in a future article on this, I may even get more in-depth on being on the receiving end of violent crimes and trying to make intelligible why I, as a victim, still support penal abolition.

Peter Mason  18:56

You end the article by emphasizing the importance of your focus on labor and illustrating how your complete definition of survival labor would operate in various scenarios. What are your key points in this discussion?

Professor Yvette Butler  19:07

This discussion is essentially picking out where some activity should be considered survival labor and potentially benefit from protections like the right to earn a living, and where the activity is sort of just a survival crime, but should still be decriminalized in the regular legislative process and addressed in a non-penal way. In my article, I run through several scenarios, and I'll talk about some of those scenarios now. So, in 2003 there's an example of forgery that I think could fit the definition of survival labor. The Fontes's appealed a conviction for forgery, criminal impersonation, and misdemeanor theft, for presenting a false identification-card and a forged payroll check. The wife testified that the husband was planning on using the money to buy food for their three children. The husband testified that his children suffered from serious health problems, had not eaten in over 24 hours, and they were turned away by three food banks. He worried that the lack of food would exacerbate his children's health problems and lead to malnutrition and death. Andm unfortunately, the court did not let him present evidence of his concern for his children's welfare. The court mentioned that they had sympathy for the downtrodden, but that Mr. Fontes didn't establish that there was an imminent threat of injury to the children, or that he had no legal alternatives. And so under my conceptualization, I believe this would be survival labor. Mr. Fontes engaged in a criminalized act that was clearly poverty driven to meet a basic need for his dependents. He engaged in the criminal act because of extreme financial need. And I think the court sympathy rings hollow because it's also extremely unclear what else he should have done in order to provide for his dependents. There's another example that I think shows some of the difficulty where some instances of survival crimes may not be able to be considered survival labor, but something still has to be done, which is where the penal-abolition and transformative-justice lens comes in. So, for example, in 1993 the Turners appealed a conviction for unnecessarily exposing their children to inclement weather. The two of them left their kids in the car in freezing weather to go to work. The parents had been unemployed and homeless just four years earlier, and then they secured their jobs at a newspaper where they worked inserting sections into the newspapers. They worked irregular hours, and often worked from the afternoon to the next morning. Their childcare options had fallen through, and both parents had unclear instructions on whether or not they could bring the children inside, because it may not have been safe to bring them into the working environment. And so their concern was, if we don't leave the children in the car, they can lose their jobs and all become homeless once again. But of course, if they did leave them in the car, they might be subject to criminal penalties, which they were. And so the Court acknowledged that the parents were in a difficult decision, but the more immediate priority was to protect the children from an imminent threat to their health and safety. And it noted that economic necessity, such as theft of food, has never been a recognized defense of criminal conduct. And so in drawing on this analogy to theft of food, the court communicated that even if there's pressure to do something criminal in connection to providing for one's family, it shouldn't be protected. And so it's a particularly challenging example to my framework of survival labor, because ultimately, while the criminalized act was leaving the children in the car, it seems that the actual labor was the formal employment. But the necessity was clear: show up to work or lose your job and your shelter. But it also seems cursory to say that leaving the children in the car was solely a crime. The survival element is present in their decision to leave the kids in the car, choosing to work in order to guarantee the shelter necessary for their children's survival. So this was arguably an action that would assist the Turners in pursuing self-sufficiency, which is, of course, you know, characteristic number-one of my conception of survival labor. But it's also possible that the criminalized action is too attenuated to the values of labor that I've laid out, which means that it wouldn't qualify as survival labor, but would still be a survival of crime worthy of decriminalization under penal abolitionist logic. And then finally, there's a much more recent example of somebody named Robert Ibarra in New York City, who, essentially he stole a sandwich. And so he ended up stealing a sandwich because he had some government assistance, a stipend and food stamps, but he had an unexpected expense, and was down to zero. So, he wasn't able to feed himself, because he had no more monetary resources to go out and get food. He was able to avoid jail time, but when interviewed about what the city should do about minor shoplifting, he said that he didn't know. He said some people might take advantage of the system; if they get away with stealing, maybe they'll do it regularly. But I really needed it: that's why I did it. I really try to stay out of trouble. And so my observation is that, while he might attempt to stay out of trouble, it's similarly unclear how he's supposed to avoid trouble in the future. So what are his options next time? He was already on government assistance, he was already in a financially precarious place that an unexpected expense knocked him right over the edge. Studies show that approximately 56% of Americans don't have the savings to cover a $1,000 emergency expense. 32% would be unable to cover a $400 expense without going into debt or seeking assistance from family. And so I think these instructions by courts or police to stay out of trouble, or fears that people might just get away with stealing, demonstrate a commitment to a narrative of individual responsibility. So like, if one just worked harder, they would have the resources. If you manage your life better, you wouldn't be out of money. But that completely ignores the issues of crushing poverty that a lot of people are suffering from. It approaches poverty, and people suffering from poverty, as other. So like, they are untrustworthy and they are out to take advantage of the rest of us, law-abiding, responsible individuals, and if they order their lives like we do, then they would be just fine. But there are, of course, some people who, and I think we all know somebody, who just can't get their lives together, even when they're given all the opportunities in the world. But I don't think that our first question should be, is this person going to game the system, or, I know somebody who does, therefore everybody does. I think presuming that this other, that this they, are always trying to take advantage of us; like, the focus should be on making society hospitable enough that there's no reason to take advantage. And so, what if there's no systems in game? Why steal if the need isn't there? I think these are the kinds of questions that I'm trying to help us get at from this perspective of crime as labor, and how can we more creatively restructure our society to avoid a lot of these harms that people are suffering.

Peter Mason  27:03

Finally, what do you hope a listener or reader takes away from this episode more generally?

Professor Yvette Butler  27:09

The revolutionary energy from 2020 feels like it's almost gone, and with it, any political will to decriminalize survival crimes. Such decriminalization is necessary because, as we've been watching for years, police encounters often lead to police killings. And so I'm hoping that there is still enough energy to think creatively about what our society could look like, and how we could enhance safety for all, by taking a more empathetic look at why people engage in criminalized labor and really push the bounds of what we think is possible to care for all humans in our society.

Peter Mason  27:52

Professor Butler, thank you so much for joining us and discussing your article.

Professor Yvette Butler  27:56

Thanks so much for having me.

Peter Mason  28:03

We hope you've enjoyed this episode of the California Law Review podcast. If you would like to read the article, you can find it in Volume 112, Issue 2 of the California Law Review at californialareview.org. For updates on new episodes and articles, please follow us on Instagram @californialawreview. A complete list of our socials is available on our website. Lastly, you can find a list of the editors who worked on this episode of the podcast in the show notes. See you next time.