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June 14, 2015

Fascinating account of how "how neoliberalism lies at the root of the carceral state"

LogoThe always interesting poly-sci prof Marie Gottschalk has this especially interesting new piece in the Boston Review headlined "The Folly of Neoliberal Prison Reform."  The lengthy piece merits a full read; these excerpts from the start and end of the piece are intended to highlight the article's themes and strong flourishes:

Amid deficit-allergic neoliberal politics, everyone can agree on the appeal of budgetary savings.  So now it is not just liberals going after mass incarceration. A group of brand-name conservatives, including Newt Gingrich, Grover Norquist, and, most recently, former governor Rick Perry of Texas, has endorsed various budget-cutting initiatives that would reduce prison populations.  Utah Senator Mike Lee, an influential Tea Party Republican, has delivered speeches on “the challenge of over-criminalization; of over-incarceration; and over-sentencing.”

This bipartisanship has fostered a wave of optimism; at last it seems the country is ready to enact major reforms to reduce the incarceration rate.  But it is unlikely that elite-level alliances stitched together by mounting fiscal pressures will spur communities, states, and the federal government to make deep and lasting cuts in their prison and jail populations and to dismantle other pieces of the carceral state, such as felon disenfranchisement and the denial of civil liberties, employment, and public benefits to many people with criminal convictions.

For one thing, the carceral state has proved tenacious in the past.... If there is to be serious reform, we will have to look beyond the short-term economic needs of the federal and state governments. We can’t rely on cost-benefit analysis to accomplish what only a deep concern for justice and human rights can.  Indeed, cost-benefit analysis is one of the principal tools of the neoliberal politics on which the carceral state is founded....

[T]he carceral state was not built by punitive laws alone, and it can be dismantled, at least in part, by a change in sensibilities.  The carceral state was born when police officers, parole and probation agents, judges, corrections officials, attorneys general, local district attorneys, and federal prosecutors began to exercise their discretion in a more punitive direction as they read the new cues coming from law-and-order politicians.

That discretion could be turned toward lenience.  President Obama and state governors have enormous, largely unexercised, freedom to grant executive clemency.  Federal judges have considerable wiggle room to depart from the federal sentencing guidelines, as the Supreme Court confirmed in United States v. Booker (2005) and reconfirmed in Gall v. United States (2007).  The Department of Justice could put an end to overcrowding in federal penitentiaries by calling a halt to the federal war on drugs. The Federal Bureau of Prisons (BOP) could “eliminate thousands of years of unnecessary incarceration through full implementation of existing ameliorative statutes,” according to a report by the American Bar Association.  For example, the BOP and many state departments of corrections could release more infirm and elderly inmates early via a process known as compassionate release.

Prosecutors may be the linchpins of penal reform. The late legal scholar William Stuntz described them as the “real lawmakers” of the criminal justice system because they enjoy vast leeway in charging and sentencing decisions.  Attorneys general and district attorneys also set the tone and culture of their offices and determine how prosecutors working under them exercise their discretion....

Alleviating the root causes of poverty and inequality will take a long time.  In the meantime, no compelling public safety concern justifies keeping so many people from poor communities locked up and so many others at the mercy of the prison beyond the prison. The demands of justice and human rights compel thoroughgoing change, whatever the cost-benefit analysis returns.

I am a bit less pessimistic than this piece about what "neoliberal" cost-benefit analysis might achieve in the context of modern sentencing and prison reform, in part because I think mass incarceration was fueled (and is sustained) more by "classical" notions of justice and victim-rights than this article acknowledges. I especially think that "neoliberal" cost-benefit analysis has an especially important role to play in ratcheting back the modern drug war. That all said, there is much I agree with in this article, and it should be read by everyone eager to think deeply about modern criminal justice reform goals and means.

June 14, 2015 at 11:03 AM | Permalink


I share your greater optimism and greater acceptance of cost-benefit analysis as a tool in the fight against mass incarceration and prison without prison. I am in broad agreement with the article and am grateful for Gottschalk's work. However, the article's focus on attacking neoliberalism and cost-benefit analysis may ultimately distract from the actionable ideas for reform contained in the article and lead the article into misunderstanding both the nature of the problem of mass incarceration and the nature of its most-likely solutions.

For instance, the article inexplicably talks about growth in incarceration from the 1970s to 2000s without mentioning anything about violent crime rates. Granted, crime does not cause incarceration, politics does. But American politics favoring incarceration were assisted by an almost 400% increase violent crime rates between the 1960s and 1990.

See, for example, this graph:

Conversely, the huge fall in violent crime rates from the 1990s to today significantly improves the political prospects of de-incarceration. A fall in crime alone may not decrease incarceration if punitive policies remain in place (especially our current punitive prosecutorial policies, as Gottschalk aptly notes). However, a drop in violent crime does help politics favoring de-incarceration.

The article suggests that states faced budgetary constraints and social agitation against incarceration and did not de-incarcerate during a period of rising violent crime in the 1970s. Granted. But the article fails to explain why that history should lead us to believe that states will not de-incarcerate when facing similar budgetary constraints and agitation against incarceration during a period of falling violent crime. That is our current circumstance (as can be seen on the graph above).

Additionally, the right on crime movement cannot accurately be reduced to mere neoliberalism. The right on crime movement promises to reduce the power with which conservatives politicize crime rates in favor of increased incarceration. Changing the politicization of crime is a game changer.

See http://ann.sagepub.com/content/651/1/266.abstract (sorry for the paywall)

The opportunity to reduce incarceration is a political opportunity favored both by reduced violent crime rates and reduced politicization in favor of incarceration. Whether that opportunity will be seized is uncertain. Whether we can accurately understand that opportunity without grappling with crime rates and the politicization of crime is not.

Obsessive American fear of crime—and our related, delusional punitiveness towards crime—stand in sharp contrast with our lax indifference towards other, greater threats to our wellbeing.

See the text supported by notes 8-14 at: http://harvardlawreview.org/2015/04/policing-mass-imprisonment-and-the-failure-of-american-lawyers/

However, until we persuade all Americans to focus on what kills them instead of on bloody headlines we'll need to contend with crime rates and the politicization of those rates. We won't be able to do that effectively if we pretend they don't exist. Neither will we be able to be effective if we cede cost-benefit analysis to the neoliberals without insisting that deep concerns for justice and human rights must matter in that analysis.

Posted by: Wade | Jun 14, 2015 11:38:03 AM

"Liberal", "Neo-Liberal", and "Lefty" are the principal hash tags thrown about by those who wish to denigrate a program, a notion, a law, a legislature, a court. If turnabout were fair play then the response would always be that opponents of something were facist, nazi, neo cons, catholics, republicons, right wingers and do badders.

America will have to deal with crime rates and with prison over population until doomsday. Ron Paul called for a national holiday named Doomsday. It is suggested that it fall on December 8th. That was the last time in 1941 that America bothered to get a Declaration of War before going off to war. War is one thing that most righty and lefty agree on. ISIS is in the lens. Get your kid ready to go. To those that have gone I thank you for your service. Ah, that is something we could do with all the inmates! Send them to Afghanistan, Iran, Iraq and a hard place.

Posted by: Liberty1st | Jun 14, 2015 1:12:04 PM

"Prosecutors may be the linchpins of penal reform." This is very true. But better than asking prosecutors to "turn their discretion towards lenience" (good luck with that) the most direct way to begin to address the incarceration epidemic is by urging those who set budgets in YOUR county to trim the budget of the local district attorney's office.

If you just take a look at your local DA's budget, you will be inspired to see that it is trimmed. Most likely, the size of the budget is immense. You won't believe how many prosecutors there are and how much they are being paid. You won't believe how well-appointed their offices are. You won't believe the size of their support staffs, include secretaries, investigators, researchers, clerks, and "victim witness advocates." All of those people are being paid to do a job, and that job is to put as many people behind bars as possible for as many years as possible.

These bloated budgets are realistically the root of the problem. Trim the budgets, and you will trim the prison population. It's as simple as as that.

Posted by: Dave Carruthers | Jun 14, 2015 5:40:23 PM

I do not have a more formal name for propaganda that does not lie, but leaves out contrary facts and logic. I call it a Kissinger lie. Kissinger testified about the state of the State Department. He did not mention the secret, illegal carpet bombing of Cambodia during the testimony. Later, when asked, why, he replied, they did not ask me.

Nor can I blame 1L for carpet bombing the intellect and honesty of the author, she is not a lawyer. She is a journalist, which is actually more immoral and reprehensible than being a lawyer.

The carceral nation was not a scam by neo-libs, neo-cons, nor by any politician. It was a brilliant tactic to save the legal system. It assuaged the seething wrath of the public living in the dystopia of rampant violent crime produced by the coddling of criminals by the Supreme Court of the 1960's and 1970's.

Then in the greatest accomplishment of the lawyer profession of the Twentieth Century, it worked. It quickly dropped crime by 40% across the board. That incapacitation dividend continues to pay off, as the people in stir had their fecundity dropped. They did not spawn a dozen super predators by a dozen different crack whores. So the millions of criminals expected are missing, and the crime rate has not increased despite bad economic conditions.

As to cost, the cost of incarceration in Super Max, say it is $100,000 a year. If one of the prisoners were to be released, the value of real estate in his vicinity would drop by several $millions. Say, he is a lazy criminal. He only commits only 200 felonies a year. That means we are paying $500 to not have him do one crime in the streets. You wouldn't pay $500 to not be pistol whipped and carjacked. The ER visit for you pistol whipping would cost a minimum of $5000 (at $1000 an hour in the ER). That assumes no residual damage in the form of a life altering concussion. That makes the $100,000 a year one of the greatest bargains in human deals.

Here is what really happened. That drop in crime of 40% caused what? Lawyer unemployment, actually having to work as cab drivers after law school graduations. That cannot be allowed to stand, so we will now release the criminals to generate a few lousy, worthless government make work jobs.

Posted by: Supremacy Claus | Jun 14, 2015 9:51:20 PM

Prof. Berman. Seriously, give your home address to the parole board. You have a wonderful and beautiful family. We will seize the houses surrounding yours under Kelo. Into each, we will put a dozen released black thugs, the ones that we are discriminating against by having them in prison. We will do this without a zoning hearing, whether anyone likes it or not. These will all be non-violent drug dealers. Does it matter if they have raped dozens of little girls, and murdered hundreds of competitors during the crack epidemic? The adjudicated crime will be a non-violent possession with intent to deliver, and they will have been horribly entrapped by the police snitch.

Isn't it true that, "The demands of justice and human rights compel thoroughgoing change, whatever the cost-benefit analysis returns."?

If you think this idea is not good, why is it a good idea to place them in black neighborhoods to victimize black people? Let them live among the lawyers.

Same strong suggestion to the heartless, racist, vile feminist bitch that wrote the above piece of trash.

Posted by: Supremacy Claus | Jun 15, 2015 2:32:09 AM

At the risk of getting all ad hominem, Mr. Claus, what is it that you're really angry about? I mean, I know what you *say* you're angry about -- indeed, I don't think I've ever encountered someone so consistently and unremittingly furious about anything, and I've watched my share of Fox News -- but I have this nagging sense that there's more to your story. I'd be interested to hear it. Certainly I'm more interested in that than in your constant, vicious smears of reasonable people who disagree with you.

Posted by: Ain't Nick | Jun 15, 2015 10:32:44 AM

AN. Some misunderstanding on your part, which has been addressed many times.

I love the rule of law. I love the lawyer. I love the street judges. The rule of law is an essential utility product, like water and electricity. Turn it off, you get Fallujah. Why would I put in so much effort and mental strain, except out of love? What you do not grasp is the carpet bombing of the intellect of bright modern students in 1L, by a criminal cult enterprise. They emerge with atavistic supernatural beliefs, and there is no known exception among practicing lawyers. There may be some among people who dropped out. I view personal remarks as frustration in the debate. However, we are dealing with people who have less common sense and street smarts than people with mild mental retardation. We are also trying to take money away from people, relentless rent seekers. So personal language happens sometimes.

I do not believe they are sincere. I believe that only the execution of the hierarchy will ever achieve any substantive change. This may happen after a nuclear device is detonated on our shores because PC prevented our warriors and police from attacking the enemy full force. I would like to help draft the Amendment excluding anyone passing 1L from any bench, any legislative seat, and any responsible policy position in the executive.

You may also have missed some comments demanding fairness credit for making innovative and compelling defense arguments. In the above comment, I acknowledged the tremendous lawyer achievement, under public pressure, of dropping crime 40%. Sentencing guidelines brilliantly stopped the public anger, without making any substantive change in the system, and powers of the lawyer profession. It shifted power from judges to prosecutors, but the latter are still under the full control of the criminal cult enterprise hierarchy. I believe that was an unfairly ignored factor in the economic boom of the 1990's. I have provided the data that would compel me to oppose the death penalty even for members of the lawyer hierarchy (e.g. the Werther Effect, where hundreds of kids hanged themselves around the world after watching the video of the hanging of Saddam Hussein).

There is no greater love than the love great enough to correct. If the profession can be corrected, it will begin to fulfill its own self stated goals of each law subject. Each and everyone of these goals is now in utter failure. Its income will rise. Its public esteem will shoot up, as it deserves and needs to. And a statue will be errected to the Supremacy in front of ABA headquarters, as a savior.

Posted by: Supremacy Claus | Jun 15, 2015 10:57:17 AM

SC: I apologize for not having read those posts of yours that might have expanded my understanding of where you're coming from. Also, I can't say you didn't at least make a good-faith attempt to respond to my questions, although I'm afraid I can't engage much of a response that essentially calls for wiping out an entire class of people. Even assuming you're being hyperbolic, which I do, I don't really know what to say.

Posted by: Ain't Nick | Jun 16, 2015 11:09:31 AM

I have also offered numerous remedies short of criminal sanctions. Move the Supreme Court to Wichita, KS. Give it an even number of seats to make it more conservative. Increase the seats to 500 if it is to legislate from the bench. Give it a research policy budget. Open it to non-lawyers or random members of the jury pool for an upgrade in quality of decisions and clarity of writing. End all self dealt immunities. These justify violence in formal logic. Repeal the Eleventh Amendment as the surest path to shrink government. Liability shrinks the entire enterprise, immunity grows it. The lawyer knows that. Criminalize rent seeking, since it is synonym for armed robbery. 123D to end all crime by ending all criminals. DOJ budgets the genetic testing in utero for antisocial personality disorder, and abortion is encouraged in the first 20 weeks of gestation.

Posted by: Supremacy Claus | Jun 16, 2015 4:59:13 PM

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