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
Abbe Gluck abbe.gluck 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 msl46 at law.georgetown.edu
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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Reducing Mass Incarceration – It's Not About "Free-Market Innovation," Grover Norquist!
Bernard E. Harcourt
There have been several fascinating interventions on the question of reducing mass incarceration since I last posted on Reducing Mass Incarceration, and they have ranged the political spectrum with important contributions from Mike Konczal at the Roosevelt Institute, Josh Brokaw over at Reason.com, Scott Keyes at Think Progress, and Grover Norquist at the National Review Online. The Justice Policy Institute also just released a report criticizing President Obama’s budget for “an 11 percent increase from FY2010 in spending on the federal prison system and slash[ing] funding for juvenile justice programming dedicated to providing opportunities for positive life outcomes for youth involved in the justice system.”
Some commentators believe that the on-going state budget crises have already triggered a new climate of bipartisanship on punishment that is likely to reduce prison populations. Others are touting economic considerations as the path to reform. And, to be sure, we have seen the rate of prison growth plateau with the financial collapse and even some states reducing their prison populations.
But one problem with the embrace of austerity as the means to prison reform is that it attributes too much to economics and fails to appreciate the dynamics that led to the prison excess. Mike Konczal makes the excellent point that the budget crisis alone is not going to solve the underlying problems—and in fact, may exacerbate them: “During times of budget stress you see an increase in fear among the general population. So any desire to use the state’s balance sheet as an argument for changing prison policy is going to be offset by an increase in an xenophobia and retrenchment that expresses itself most forcibly in the language of crime control.” Marie Gottschalk makes the same point in her work.
Deficits and austerity alone will not bring about reform. There needs to be federal leadership. The experience of the Great Depression, the New Deal, and 1960s deinstitutionalization suggest strongly that economic woes alone do not reduce prison population and may in fact increase general anxiety and fear of crime. The privatization of prisons creates additional lobbying pressure for politicians to maintain current levels of prison populations. And as we have seen in New York State, the weak economy is actually pushing many counties in the northern part of the state to explicitly combat prison closings or retrenchment because that is their only source of economic viability.
I would argue that, if anything, economic logics have facilitated, not hindered, our penal excess in the last forty years—which is the essential point of my new book, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard 2011). Our increasing faith in the efficiency of markets has propelled policing and punishment as practically the only space of competence and efficient government intervention. The consequence, whether intended or not, has been to make it easier to resist government intervention in the marketplace, but to embrace the criminalization and punishment of anything we can call disorder. It facilitates passing new criminal statutes and wielding the penal sanction more liberally because, it is illogically believed, that is where government is necessary, that is where the state can legitimately act, that is the proper and competent sphere of politics.
It is truly puzzling how a society marked by such strong fear of big government and skepticism of government efficiency and by such resounding embrace of free market ideals, would paradoxically create the largest government-run prison bureaucracy in the world—in raw numbers or per capita. It is time to put aside the ideology of self-regulation or free markets, and begin to lead the way toward addressing this social disaster.
The answer is not "free-market innovation," as Grover Norquist suggests in the National Review. Norquist writes that the only way to reform the prison system to “both keep Americans safe and save money” is if we “return to conservative principles of local control, performance-based funding, and free-market innovation.” The example Norquist uses is Texas, where incarceration rates went down 8 percent while the crime rate dropped 6 percent. Those are great statistics, but what did the "free market" have to do with that? In his own words, Texas took inmates out of prison and “placed them under community supervision, in drug courts, and in short-term intermediate sanctions and treatment facilities.” That’s not free market economics (even if there were such a thing as a free market), that’s recognizing full well that the social sphere is fully regulated and that what we need to do is regulate more wisely. But there is nothing free about it. [Incidentally, this is exactly what was done during the deinstitutionalization of the 1960s].
I mentioned President Kennedy's programs and calls for action to deinstitutionalize mental health patients in 1963 in the last post and asked whether it would ever be possible to hear a President of the United States say something similar about mass incarceration today? Hard to imagine, I said. But let me emphasize again, it will not be possible to make much headway in reducing mass incarceration even with our recession without the kind of political investment, will, and reregulation that President John F. Kennedy demonstrated in 1963.
There is no good reason to leave the problem of mass incarceration to economics—especially free market economics. The economic stress on budgets is unlikely to produce effects without federal leadership and a clear understanding that what we are doing is reregulating a regulated sphere.
In all this, it will be especially important not to replicate the hyper-prison by other institutional means, nor to worsen the racial imbalance in our criminal justice system. We need to avoid compounding, rather then reforming. Mike Konczal draws an excellent parallel to broken-windows strategies (another one of my pet peeves). Konczal writes that the dark side of broken-windows is that you may get the worst of both: “yes, we can criminalize petty early activities and have a massive prison system.” Or, as I argued a few years ago in the Boston Review, you end up with “both lengthened sentences for hardcore offenders and order-maintenance policing.” We need to make sure that, in the process of reforming the prison, we don’t compound the prison with other equally problematic forms of social control.
In sum, this conversation needs to address the larger political economic issues, many of which are in evidence in Wisconsin right now. Maybe someone can explore that link in another post… Posted
by Bernard E. Harcourt [link]