Mitali Nagrecha


Reflections on Fees and Fines as Stategraft: A Response to A Theory of Stategraft

Rebekah Diller, Mitali Nagrecha, Alicia Bannon

In A Theory of Stategraft, Bernadette Atuahene advances the concept of “stategraft” to describe situations in which “state agents transfer property from persons to the state in violation of the state’s own laws or basic human rights.” This Essay delineates the ways in which criminal legal system fees and fines can be characterized as stategraft and explores the value of this concept for social movements. In many ways, the stategraft frame, with its focus on illegality, fits well with much of the litigation and advocacy against unconstitutional fees-and-fines practices that have occurred over the last decade. Exposing illegal practices such as the operation of debtors’ prisons laid the groundwork for a more fundamental critique of the use of the criminal legal system as a revenue generator for the state. The Essay cautions, however, against relying too heavily on illegality to describe what is wrong with fees-and-fines regimes in light of courts’ reluctance to impose robust legal protections against state practices that saddle those who encounter law enforcement with debt. Relying on an illegality critique may make it harder to attack entrenched practices that courts are inclined to bless as legal and obscure more fundamental dynamics of predation and regressive revenue redistribution. At this juncture, calling attention to these structural issues is likely to be more fruitful both as an organizing tactic and as a description of the harms posed by fees and fines.