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
Thanks to Jeremy Kaplan-Lyman and Trevor Stutz, we had a fascinating workshop at Yale Law School last Thursday March 31st on the topic “Theorizing Punishment: From Mass Incarceration to the Death Penalty” along with David Garland from NYU and James Whitman and Tracey Meares from Yale Law School. David Garland and I got into a heated argument about the role of neoliberalism in punishment which was extremely productive, in my opinion, especially in clarifying the central argument of my book, The Illusion of Free Markets: Punishment and the Myth of Natural Order.
David Garland projected onto my book, incorrectly, a simplistic story about neoliberalism. Garland suggested that the book argues that mass incarceration can be explained, in his words, “as a function of the effect of neoliberal policies;” or, in other words, that it is the privatization of prisons and the application of neoliberal cost-benefit analyses that fueled prison expansion over the last 40 years. Garland then argued that this cannot be the case because mass incarceration is, again in his words, “an affront to neoliberal principles” of cost efficiency; and he suggested, to my great surprise, that neoliberal principles “may be an antidote” to the problems of mass incarceration.
Garland clearly has the argument of the book wrong, but his error is productive and reflects a common misperception about the role of neoliberalism in punishment theory more generally. His second argument (that neoliberalism "may be an antidote") reflects a fundamental misunderstanding about neoliberalism (reflected as well in many of the comments here) that is also enlightening. Clarifying these multiple errors may be a step forward in the debate, so I thought I would give it a try. As an aside, in conversation with others I never cease to be amazed at the antagonism and confusion that this simple term, “neoliberalism,” seems to generate. Although it triggers such visceral responses, it’s important to emphasize that it is nothing more than a simple and useful neologism that combines the term “neo” (which means the revival of an older thing) with the term “liberalism” (which refers to early liberal economic thought based on neoclassical theories of economics). To be crude, Adam Smith is usefully described as a “liberal” economic thinker, and the Chicago School of Economics as “neoliberal.” The prefix “neo” is necessary because the contemporary forms of liberal economic thought involve new terms, techniques, and practices – including a whole new jargon and new methods – that are productive and have truth effects on contemporary politics. The term has taken on a historical periodicity dimension, thanks to the excellent work of David Harvey; but even so, I confess I simply don’t understand why the useful prefix “neo” would cause such consternation, antagonism, and confusion!
Neoliberalism versus neoliberal policies
Let me begin, then, by correcting David Garland regarding the central argument of the book. My argument is not that privatization and neoliberal cost-minimizing efficiency-maximizing policies are responsible for increasing the prison population. My claim, instead, is that those neoliberal ideas were born, joined at the hip, and remain today paradoxically linked to an ideal of a strict and severe police state. In the book, I trace the historical link between the two – that is, between, on the one hand, the early liberal and later neoliberal ideals of limited government intervention in economics, with, on the other hand, the notion of the government’s competence and legitimacy in policing and punishing (which extends, of course, to homeland security and the military). I also demonstrate how the illusory nature of the first idea (that there could be spaces that are free of regulation) practically necessitates the second ideal (of police) to sustain it.
My argument, in essence, is that the idea of natural order in economics emerged in the 18th century hand-in-hand with an ideal of punishment despotism, or in other words with the idea that the quasi-exclusive competence of the state was in the penal domain or the area of security; and that this paradoxical juxtaposition is what has facilitated the growth of the penal sphere during historical periods when it comes to dominate the public imagination.
Both of these ideas metamorphose over time, but they have always remained joined at the hip. The 18th century idea that a natural order governed the economic domain evolved into the notion of an invisible hand and of laissez faire, later into the idea of spontaneous order, and ultimately into the theory of efficient markets or, more technically, the notion that “competitive markets” are efficient. By the same token, the idea of punitive despotism (what was called “legal despotism” by the Physiocrats in the 1760s) evolved into the idea of the state as “night watchman,” into the conception of a “panoptic” all-seeing penal apparatus, and ultimately into the theory that the proper function of the criminal law in a capitalist system is to forcefully prevent “market-bypassing.”
It is possible to draw a genealogical lineage that schematically traces how these ideas evolved, linked together, over the past two centuries:
Physiocrats: Natural order in economics but legal despotism in policing and punishment.
Early 19th century liberalism: Laissez-faire limited government in commerce but the state as night watchman.
Jeremy Bentham: “Be quiet” as the maxim in economics but the all-penetrating panopticon prison.
Chicago School: Market efficiency in economics but criminal law and punishment for “market-bypassing.”
It should not come as a surprise that the term “night watchman” was used in the context of laissez faire! These two ideas – free markets but a police state – have been joined since the Physiocrats first inserted the notion of natural order into the economic domain in the 1750s, despite the fact that they are fundamentally inconsistent. Inconsistent, I argue, because the first assumes government incompetence (in the area of economic regulation), while the second assumes government competence and legitimacy (in the area of policing and punishing).
My argument in The Illusion of Free Markets is that this dominant, yet paradoxical way of thinking has facilitated moments of penal excess in this country, not just during the neoliberalism of the past 40 years, but also at the beginning of the 19th century with the birth of the penitentiary. Periods of strong belief in free market ideals have gone together with the birth and expansion of the penal sphere.
And these ideas themselves have certainly become dominant since the 1970s. The vast majority of Americans today believe in the ideal of a “free market.” A PIPA poll in 2005 revealed that 71 percent of respondents in the United States agreed with the statement: “The free enterprise system and free market economy is the best system on which to base the future of the world.” (These numbers have barely changed since the 2009 bailouts and nationalizations of Citibank and Bank of America). By the same token, most people agree that the government’s legitimate role is in policing and punishing (and the military).
This paradoxical set of beliefs about the proper role of government has facilitated prison expansion by naturalizing the state’s police function and undermining our resistance to punitive excess. It is what made so natural and appealing the political rhetoric of President Ronald Reagan, captured so well in this stump speech from 1983:
“[T]his is precisely what we’re trying to do to the bloated Federal Government today: remove it from interfering in areas where it doesn’t belong, but at the same time strengthen its ability to perform its constitutional and legitimate functions…. In the area of public order and law enforcement, for example, we’re reversing a dangerous trend of the last decade. While crime was steadily increasing, the Federal commitment in terms of personnel was steadily shrinking…”
The logic should be jarring – the logic that a bloated, incompetent government should expand into the one area (coercion and imprisonment) that carries such great risk of excess. And yet it was made as natural as natural order from the inception of liberal economic thought.
Neoliberalism v. Neoliberal Penality
It is this paradoxical juxtaposition of neoliberalism and the Leviathan police state, as opposed to neoliberal policies such as privatization of prisons, that facilitates punitive excess – and not just in the last 40 years, during the period some call “Neoliberal,” but also during the early 19th century and the birth of the penitentiary, during a period historians now call “the Market Revolution.”
In this sense, as a technical matter, it is probably wiser to refer to the problem – the paradoxical juxtaposition – as “neoliberal penality” rather than neoliberalism tout court. I do so in the book and in articles, but I confess that the term “neoliberal penality” produces even more confusion for the reader given that even fewer in the general public fully understand that the term “penality” refers to (and given also the rather amusing phallic ring to that word). Suffice it to say, arguments should never be boiled down to one or even two words!
James Whitman, I think, captured the error best at the workshop when he said that Garland “assumes that neoliberalism is a consistent philosophy.” That’s the central misunderstanding, in effect. Neoliberalism comprises a set of interwoven discourses and practices that are not entirely consistent. Among other things, the view of the state’s competence in punishment is at odds with the general assumption of governmental incompetence.
Now, to be sure, it might be possible to forcibly, definitionally, and hypothetically render neoliberalism "more" consistent. There is no reason, after all, that neoliberal principles could not in fact pervade the punishment sphere. There is no good reason that the state should have the monopoly on the legitimate use of force. As a factual matter, we all know that the state does not in fact have such a monopoly (as evident in a wide range of cases from Rodney King to Libya today; the recent Supreme Court decision in Connick v. Thompson is clear evidence of that!) And as a normative matter, the Weberian argument merely assumes the neoliberal paradox and is by no means self-evident: we might be far better off if everyone had to fend for themselves in security, not just in economics.
One great mystery, in fact, is why neoliberals are so resistant to extending their theories into the penal domain. It would be pretty easy to be consistent: instead of criminal trials, we could have private mediation and arbitration, as well as self-help remedies. Mediation and arbitration are well theorized in private law; there is no reason neoliberals have not properly theorized them in the penal sphere. That task, it seems, has been left to a few anarcho-capitalists, including Milton Friedman’s son, David Friedman; but the neoliberals should have done this a long time ago and probably should, by now, have a fully fleshed out theory. The fact that there is none is awfully revealing. It is what points to the inconsistency. Somehow there is a real internal resistance to neoliberal consistency the closer you get to crime and punishment.
Neoliberalism as the “antidote”?
Garland’s claim that neoliberal principles “may be the antidote” to mass incarceration is surprising, but extremely revealing and also enlightening. Garland’s evidence for this argument is former Prime Minister Margaret Thatcher who, Garland contended at the workshop, applied neoliberal cost-cutting policies to the penal sphere that caused a drop in the prison population.
Even setting aside the historical record, Garland’s claim is puzzling, but revealing, because he buys into the myth that neoliberal cost-efficiency is neutral and non-political. This is puzzling, to say the least. Comparing costs, doing cost-benefit analysis does not give neutral, objective policy outcomes. The neoliberal cost-benefit approach is inherently political and turns entirely on political decisions about measurement. It is extremely naïve to think that it would simply militate in favor of reducing prison populations!
The sad truth of the matter is that mass incarceration during this period of post-industrial economic depression, with real unemployment around 17.7% and nothing but a service economy left, can relatively easily be justified on a cost-benefit basis. It all depends on what value we place on intangibles like liberty, coercion, human capital, human misery, being unemployed, prison economies, the cost of crime, etc. To be crudely simplistic, it all depends on our calculation of expected crime (associated with prison releases), our valuation of crimes (what a murder or rape or robbery or marijuana use “costs” society), our measurement of human capital (what convicts’ life expectancies are worth), etc. You could probably flip the cost outcome based on a simple variation in the value of a statistical life!
There is a larger political economic dimension within which mass incarceration is situated today. Within that political economy, cost-benefit analysis involves complex political decisions, not neutral costing or accounting principles(as if accounting principles were ever neutral!) As evidence, there are many who believe that our massive prison complex is cost-efficient on an economic basis. That is certainly what we are hearing from the northern counties of New York State, who are making it clear that prisons are their only viable economic activity.
The important point here is that neoliberal cost-benefit analysis is politically malleable. These matters involve politics, not neutral accounting (again, as if accounting itself were not politics!). In this sense, Garland’s suggestion that neoliberalism “may be the antedote” buys into the illusion of neoliberalism itself. And that too is clear error.
But useful, because it further underscores the fact that the simplistic argument that Garland projected onto my book – namely, that neoliberal policies of privatization and cost-benefit analysis have caused mass incarceration – is wrong. One would have to believe, as I do not, that neoliberal policies are outcome determinative in order to make such a naïve argument. What we need to focus on, instead, is the way in which neoliberalism plays with different understandings of the notion of liberty. That is the source of the inconsistencies that have been so detrimental to American politics.