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July 29, 2009

"Neoliberal Penality: A Brief Genealogy"

The title of this post is the title of this new piece from Bernard Harcourt available here via SSRN.  Anyone thinking a lot (or even a little) about modern mass incarceration ought to be reading all of Professor Harcourt's work, and here is the abstract from this new piece:

The turn of the twenty first century witnessed important shifts in punishment practices.  The most shocking is mass incarceration — the exponential rise in prisoners in state and federal penitentiaries and in county jails beginning in 1973.  It is tempting to view these developments as evidence of something new that emerged in the 1970s — of a new culture of control, a new penology, or a new turn to biopower.  But it would be a mistake to place too much emphasis on the 1970s since most of the recent trends have antecedents and parallels in the early twentieth century.  It is important, instead, to explore the arc of penality over a longer course: to relate recent developments to their earlier kin at the turn of the twentieth century.

What that larger perspective reveals is that the pattern of confinement and control in the past century has been facilitated by the emergence and gradual dominance of neoliberal penality.  By neoliberal penality, I have in mind a form of rationality in which the penal sphere is pushed outside political economy and serves the function of a boundary: the penal sanction is marked off from the dominant logic of classical economics as the only space where order is legitimately enforced by the state.  This essay traces a genealogy of neoliberal penality going back to the emergence and triumph of the idea of natural order in economic thought — back to the Physiocratic writings of François Quesnay and other economists during the 1760s.  It is precisely their notion of natural order that metamorphosed, over time, into the modern idea of market efficiency that is at the heart of neoliberal penality.

July 29, 2009 at 08:12 AM | Permalink

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"... triumph of the idea of natural order in economic thought — back to the Physiocratic writings of François Quesnay and other economists during the 1760s. It is precisely their notion of natural order that metamorphosed, over time, into the modern idea of market efficiency that is at the heart of neoliberal penality."

How about, tracing it back to the criminal lover decisions of the Supreme Court in 1960's and 1970's, resulting in a tsunami of crime and Fallujah like conditions in all cities of the nation? Why? To generate lawyer jobs by further immunizing the lawyer client, the vicious predator.

And trace it back to the resulting outrage of the public, demanding crime be controlled.

The most shocking aspect of this paper is not mass incarceration. It is the blind bias of the author, second only to the idiocy of the reviewers allowing its publication. There is not a single use of the phrase, crime rate, nor of guidelines, nor any reference to the interest of other nations in having their own. There is no reference to the prior crime remedy, death, nor to the rent seeking theory, sparing modern criminals that permanent remedy.

A Secretary of Defense used to justify large demands for funding by saying, "We do not set the Pentagon budget, the Soviet Union does." The equivalent may be said by the states. We do not set the prison budget, the criminal does.

Posted by: Supremacy Claus | Jul 29, 2009 11:52:29 AM

There was a panel discussion on C Span on Saturday. On the panel was a recently retired Supreme Court Justice, T.D. Jakes, a television pastor, and activist for justice reform, and another activist of high government rank. The retired justice seemed shocked. She was willing to sit through the discussion, but she seemed quite uncomfortable. She made comments such as "the justice system is fair because the defendant gets a court appointed attorney." (laughable if it weren't so tragic.) She made other remarks which revealed how out of touch she was with the reality of the justice system at the common man's level. I wondered if she listened. She sat there. I hope she listened. Everything she said was politely disagreed with by the other two panelists and even by the moderator. I pray that more high level educated people in the justice system could hear.

Posted by: DLJ | Jul 29, 2009 12:21:21 PM

FWIW, the 3d panelist on the show DLJ mentions was Charles Ogletree. (I haven't watched it yet; it's in my TiVo queue...)

Posted by: Michael Drake | Jul 29, 2009 2:57:40 PM

". By neoliberal penality, I have in mind a form of rationality in which the penal sphere is pushed outside political economy and serves the function of a boundary: the penal sanction is marked off from the dominant logic of classical economics as the only space where order is legitimately enforced by the state. "

What?


Has anyone considered filing a battery charge against whoever pushed the penal sphere? And when they marked off the penal sanction from the dominant logic of classical economics, was that in accordance with local zoning ordinances?

Posted by: Rhombus | Jul 29, 2009 4:07:09 PM

Reminds me of a Danny Kaye monolog.

Posted by: John Neff | Jul 29, 2009 9:52:54 PM

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