Civil Lawfare

To offset rising mass incarceration expenses, states adopted strategies to increase revenue, including charging incarcerated individuals pay-to-stay fees, a per diem room and board charge for the cost of their incarceration. In several states, the collection of these fees is done through civil lawsuits where defendants are alleged to be unlawful consumers of state goods and resources resulting from their incarceration. We draw on the case of pay-to-stay collection in Illinois using 102 civil lawsuits, focusing particularly on the state’s attempts to collect from the most vulnerable of incarcerated individuals, those with disabilities, to develop the theoretical concept of civil lawfare. We argue that civil lawfare describes how the state and legal actors weaponize the strictures and procedure of civil law to leverage an assault against vulnerable, disenfranchised populations facing institutional barriers accessing legal resources. We detail the challenges faced by incarcerated individuals with disabilities in navigating this system and how legal actors wage war to facilitate perpetual indebtedness to the state. We position civil lawfare as an understudied legacy of the twentieth century wars on poverty, drugs, and crime which facilitated the decimation and destruction of predominantly Black communities through deploying racialized sentencing laws, targeted policing, and exponential incarceration rates. We conclude with a discussion of the implications for access to justice.