an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
1 out of 5 Prisoners in California Is Serving A Life Sentence
Bernard E. Harcourt
Frank Pasquale’s post yesterday, Neoliberal Penality in Action, seems particularly timely in light of today’s newly-released report by The Sentencing Project, No Exit: The Expanding Use of Life Sentences in America. We are all sadly familiar with our high rate of incarceration in this country: with more than 2.3 million people behind bars, we now incarcerate 1 out of every 100 adults in the United States. But few are familiar with the length of our prison sentences. The new report is staggering in this regard: in 2009, 1 out of 11 state and federal prisoners are serving sentences of life imprisonment. That represented 9.5 percent of the total prison population. And of those lifers, 41,095 or twenty-nine percent are not eligible for parole—they have no possibility of parole release. In five states—Alabama, California, Massachusetts, Nevada, and New York—the rate is even higher, with one in six state prisoners serving a sentence of life imprisonment. In fact, in California, 34,164 persons or 20% of all prisoners are serving a life sentence, and of those, 10.8 percent are life sentences without parole. (No wonder the state is going bankrupt).
This really does raise questions whether our dominant form of market rationality facilitates prison growth and lengthy sentences. In Neoliberal Penality, I argue that there is indeed a link and that, surprisingly, it traces back to the early liberal writings of some of the first economists. (Incidentally, Stanley Fish’s swipe aside, we all know what neoliberalism is: it’s the default judgment that the government tends to be inefficient when it comes to intervening in economic or commercial exchange). The notion of natural order that emerged early in economics—and eventually morphed into today’s concept of market efficiency—went hand in hand with the idea that the government’s only legitimate responsibility was to punish the deviants and disorderly. Back in the 18th century, the early French economists in fact saw no role for positive law except to punish those who did not obey the natural order. To be sure, the vocabulary has changed today and we speak about “market efficiency” rather than “natural order” and about punishing “market bypassing” rather than “les déréglés,” but the idea is the same: the government tends to be inefficient when it comes to economic regulation and therefore should only intervene with a free hand in the traditional space of the criminal sanction.
That logic facilitates the growth of the penal sphere by making it easier to resist government intervention in the marketplace but to embrace criminalizing any and all street deviations. It facilitates passing new criminal statutes and wielding the penal sanction more liberally—because that is where administration is necessary, that is where the state can legitimately act, that is the proper sphere of policing. The idea of market efficiency creates centrifugal force that pushes the state out to the borderlands of the penal sphere.
This is not to suggest, by any means, that neoliberal thinkers like or want mass incarceration, that they desire any of these lengthy sentences, or that they wish to see the carceral sphere expanded. Milton Friedman notoriously opposed the War on Drugs, militated strenuously in favor of legalizing illicit drugs, and decried “the horrendous growth in the prison population.” Richard Epstein and Richard Posner more cautiously oppose the excesses of the War on Drugs and endorse, under certain circumstances, decriminalization of certain illicit drugs. Posner views illicit drug sales through the prism of efficient market transactions and argues that the criminalization of illicit drugs is hard for an economist to understand.
Instead, my point is that, from a perspective internal to liberal thought, the logic of neoliberalism facilitates punishment practices by encouraging the belief that the more legitimate space for government intervention is in the penal sphere. There are, of course, more immediate political and social practices that have caused mass incarceration—including the War on Drugs, racial discrimination and profiling, law-and-order politics in the 1970s, a Southern backlash to the Civil Rights movement, the collapse of the rehabilitative model, and sentencing enhancements, to name but a few. These all contributed more proximately to the growing number of prison inmates. But neoliberal penality facilitated these practices by weakening the resistance to governmental initiatives in the penal domain because that is where the state may legitimately govern. The logic of neoliberalism reduces the friction and the resistance to criminalizing and punishing because that is where the government may legitimately interfere—there and there alone. The new report from The Sentencing Project, sadly, seems consistent with this argument.