Volume 2024, No. 2

PDF link Table of Contents


PDF link Stategraft vs. Corruption: A Survey Experiment

Bernadette Atuahene & Janice Nadler

Stategraft is a socio-legal concept that Professor Bernadette Atuahene coined to describe instances “when state agents transfer property from persons to the state in violation of the state’s own laws or basic human rights.” This new concept extends the existing conversation about corruption by pointing to illegal acts that benefit public rather than private coffers and moving beyond the culpable mental states of individual actors. This Essay reports results of a survey experiment testing whether stategraft abridges citizens’ trust more than corruption. Based on the arguments made in the foundational article, “A Theory of Stategraft,” we hypothesize that respondents will view graft by public officials benefitting public coffers (stategraft) as more of a betrayal and more unfair than theft by public officials or private entities benefiting private coffers (corruption). Surprisingly, our study results suggest this hypothesis is empirically unfounded. Nevertheless, this new concept has created a unique space for academics, journalists, lawyers, and policymakers to identify and discuss graft that benefits public coffers, bringing this important conversation from the sidelines of socio-legal studies to the center stage.

PDF link Immigraft

Jayesh Rathod & Anne Schaufele

Pursuing the American dream is a costly endeavor. From the initial journey to the United States, to navigating the complicated immigration system, to labor exploitation, to scams targeting recent arrivals, immigrants pay heavily into the formal and informal sectors. As explored in this Essay, however, their pay-out does not stop there: the U.S. Department of Homeland Security (DHS) also charges and retains funds in unjustified ways, resulting in tens of millions of dollars transferred from the pockets of vulnerable immigrants and their families to the sprawling immigration bureaucracy. This Essay introduces the term immigraft to capture this phenomenon, defined as the unjust transfer of funds from individuals to the state in the context of efforts to obtain immigration benefits or relief from the state.

This Essay highlights four examples of immigraft in the U.S. immigration system, describing how sub-agencies of DHS have illegally and/or unjustly retained funds in the context of biometric services fees, humanitarian parole applications filed by Afghan nationals, immigration bond for noncitizens in removal proceedings, and administrative appeals filed due to obvious agency mistakes. This Essay concludes by exploring theoretical implications of immigraft, including the normalization of extraction of value from noncitizens and its corrosive effect on the relationship among citizens, noncitizens, and the state. By way of a path forward, this Essay also offers practical recommendations to address immigraft through executive action and congressional oversight.

PDF link Stategraft in Public Assistance Programs

Spencer Headworth

Lawbreaking and resource misuse in public assistance programs receive ample popular and political attention. The bulk of this attention focuses on alleged abuses on the part of programs’ clients. This Essay addresses a lesspublicized issue: illegal actions on the part of public officials that deprive citizens of resources to which they would otherwise have access. When such actions function to benefit government treasuries, they constitute stategraft.

This Essay focuses on episodes of stategraft in two contexts: state and local officials using public assistance money in ways that violate the spirit or letter of federal law and eligibility determination and rule enforcement interventions that result in improper benefit denials or program disqualifications. Examples in both categories demonstrate the operation of preemptive stategraft, in which officials supplement government budgets through failure to transfer resources that should have flowed to individuals and families.

PDF link White-on-Black Crime: Revisiting the Convict Leasing Narrative

Ion Meyn

Between 1880 and 1915, the Southern criminal legal system enslaved and re-enslaved legally emancipated Black persons. Under the conventional account of this period, the law facilitated and legitimatized these practices, however odious and racially discriminatory. This view—one that critiques as it accepts the legality of the system—provides an explanation for a significant number of cases in which a Black person was convicted and sent to forced labor.

And yet, there is growing evidence that many convictions were not facilitated by law but rather the result of criminal conspiracies to traffic Black victims. County-level arrest data indicates “convictions” occurred in lockstep with the labor demands of businesses that contracted with local state actors. Numerous personal accounts from victims and their families indicate that arrests occurred in the absence of any criminal suspicion. This empirical data suggests many Black “convicts” were instead victims of human trafficking. Because completing these White-on-Black crimes required coordination among multiple parties, a criminal conspiracy was formed that implicated White participants in kidnapping, false imprisonment, perjury, peonage, reckless endangerment, and reckless homicide.

This Essay examines archival evidence that suggests the criminal trafficking of Black men was a common, if not widespread, practice between 1880 to 1915. Under this alternative view the term “convict leasing” is over-inclusive and mislabels these victims of human trafficking. Under the alternative view the historical Black crime rate is not only inflated but fabricated; conversely, the historical White crime rate omits a significant amount of criminal activity. This alternative view centers the criminal conduct of White beneficiaries, inviting a close accounting of their crimes and ill-gotten gains.

PDF link The Commodification of Children and the Poor, and the Theory of Stategraft

Daniel L. Hatcher

Across the country, human service agencies, juvenile and family courts, prosecutors, probation departments, police officers, sheriffs, and detention and treatment facilities are churning impoverished children and adults through revenue operations with starkly disproportionate racial impact. Rather than being true to their intended missions of improving welfare and providing equal justice for vulnerable populations, the institutions are mining them with extractive practices that are harmful, unlawful, unconstitutional, and unethical. This Essay considers such commodification schemes under the lens of Professor Bernadette Atuahene’s excellent and important theory of stategraft. The examples discussed provide support for Atuahene’s theory, and this Essay simultaneously urges a broad understanding of the theory’s definitional elements to fully capture the scope of stategraft practices—and to help expand and link the community of scholars and advocates working to expose, unravel, and end such state-led predatory mechanisms.

PDF link Tax Enforcement at the Intersection of Social Welfare and Vulnerable Populations

Michelle Lyon Drumbl

This Essay engages with Professor Bernadette Atuahene’s theory of stategraft in the context of tax administration and the role that the Internal Revenue Service (IRS) plays in implementing certain social welfare benefits, including the Earned Income Tax Credit (EITC). Specifically, it considers whether the IRS’s denials of the EITC to those who might otherwise be eligible and entitled to it constitutes a wrongful taking by the state or a violation of basic human rights. While this Essay concludes that denials of the EITC generally do not fit within Atuahene’s definition of stategraft, it highlights two particularly problematic concerns with modern EITC enforcement and frames those within the context of Professor Atuahene’s broader concerns about how state actions affect vulnerable populations.

One concern is the racially disparate EITC audit outcomes that have come to light. Though the IRS does not collect information on taxpayer race and ethnicity, a recent report found that, among all taxpayers claiming the EITC, Black taxpayers are statistically more likely to be audited than non- Black taxpayers. The other concern relates to the so-called two-year ban, which can be imposed by the IRS following a determination that a taxpayer wrongly claimed the EITC or Child Tax Credit due to reckless or intentional disregard of rules and regulations. Though the ban is not imposed frequently, this Essay highlights due process and fairness concerns related to this authority. This Essay concludes with brief remarks about the IRS’s enforcement priorities and efforts to curtail improper payment rates of refundable tax credits.

PDF link Centering the State in Stategraft: Reforming Abusive Local Governments Requires State Law Reform

Michelle Wilde Anderson

Ten years have passed since Darren Wilson, an officer of the Ferguson police department in Missouri, killed teenager Michael Brown. The street uprising that followed led to a generation of investigative journalism, federal inquests, civil rights litigation, and legal and policy scholarship that documented local governments engaged in illegal, racially discriminatory revenue collection practices. Today, nearly every state has advocates pushing to reform local systems that stack fines and fees on cities’ poorest residents. From the political right as well as the political left, these advocates demand a version of local government that does not fund its operations by making its most vulnerable residents even worse off. Bernadette Atuahene has long been among the scholars driving this work. She forcefully critiques exploitative practices by local governments in “A Theory of Stategraft.”

Atuahene is right in her unsparing assessment. But the rightness of her argument should not deflect from the degree to which state governments also drive stategraft. State regulation, funding, and delegation of authority to local governments are background causes of abusive local systems. This Essay pulls up alongside Atuahene’s article to argue that any answer to “stategraft” will have to force states to the table of reform. Using Missouri and Michigan as examples, this Essay highlights some of the state background rules that are responsible for the impossible fiscal bind that local governments face in providing basic services to high-poverty cities. A quick look at a lawsuit in Louisiana demonstrates how states can and must share the costs of the concentrated poverty that state policy has helped to build.

PDF link Exacting Assessments: Sheetz and the Problem of Stategraft 

Christopher Serkin

In the spring of 2024, the United States Supreme Court decided Sheetz v. County of El Dorado. The case resolved a long-standing question: whether the constitutional rules applying to ad hoc development exactions also apply to legislated exactions. They do. It is an important case, and one that may reconfigure the financing of municipal infrastructure. This Essay examines the case through the lens of Professor Bernadette Atuahene’s concept of “stategraft,” or the government illegally using its regulatory power to raise money from the poor and politically powerless. This Essay compares legislative exactions to other forms of municipal finance like special exceptions and argues that they actually provide fewer opportunities for stategraft. This Essay, therefore, concludes that legislated development exactions should not be subject to heightened constitutional review.

PDF link Automated Stategraft:  Electronic Enforcement Technology and the Economic Predation of Black Communities

Sonia M. Gipson Rankin, Melanie Moses & Kathy L. Powers

Automated traffic enforcement systems disproportionately impact Black communities in the United States. This Essay uncovers a troubling reality: while technologies such as speed cameras and red light cameras are often touted as tools for public safety by the National Highway Safety Transportation Administration, they disproportionately burden Black and Hispanic neighborhoods. The authors coin the term “automated stategraft” to describe this phenomenon—an insidious process that siphons financial resources from already vulnerable groups under the guise of law enforcement. In doing so, it exacerbates economic disparities and erodes trust in legal and governmental institutions.

This Essay delves into the biases inherent in these technologies, particularly in the future of automated traffic enforcement: facial recognition systems. These biases amplify racial and economic injustices, perpetuating inequities. To address this pressing issue, this Essay proposes more just traffic enforcement practices that prioritize community trust and avoid exacerbating racial disparities. It advocates for a critical reevaluation of existing practices, emphasizing equity, justice, and community well-being over financial gain or excessive surveillance. This call to action underscores the urgent need to safeguard public interests in an era marked by increasing surveillance, ensuring that technological advancements in law enforcement serve to protect—rather than oppress—marginalized communities.

PDF link Are Municipal Fines and Fees Tools of Stategraft?

Dick M. Carpenter II, Jamie Cavanaugh & Sam Gedge

Most, if not all, incorporated communities in the United States have municipal and traffic codes that delineate the powers and duties of local governments or provide rules and regulations for public activity in the community. The primary stated purpose of code enforcement is promoting and protecting public health and safety. Codes are commonly enforced through monetary fines and administrative fees. Recent years have seen growing concern about cities engaging in “taxation by citation”—that is, the use of code enforcement to raise revenue from fines and fees in excess of citations issued solely to protect and advance public safety. A significant focus of the concern is how taxation by citation violates rights in the pursuit of revenue. In this way, taxation by citation seems to illustrate Professor Bernadette Atuahene’s theory of stategraft: state agents transferring property from residents “to the state in violation of the state’s own laws or basic human rights,” often during times of budgetary austerity. But this Essay identifies important features of municipal codes and their enforcement that are not necessarily encompassed by this theory. It suggests how stategraft may be expanded to encompass laws, regulations, and systems that legally—if arguably unconstitutionally—allow or incentivize state actors to exploit their residents for the benefit of the bureaucrat’s budget.