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Against Law, For Order

It’s taken decades and millions of lives, but elite opinion is starting to move against mass incarceration. The New Yorker and the New York Review of Books ran detailed exposés on the scale and violence of the penal state. Conservative leaders like Grover Norquist have said that mass incarceration violates the principles of “fiscal responsibility, accountability, and limited government,” while GOP darlings like Mitch Daniels have tried to take the lead in state reform. Soon the common wisdom will shift from “we need to get tough on crime” to “we jail too many people for too long for the wrong reasons.”

The next question is what to do about it, and here the answers are harder. There are those that think that it’ll be fairly easy — follow European examples and decriminalize drugs, for instance. Some, like public policy professor Mark Kleiman, believe we can change punishment techniques to have both less crime and less incarceration. There are others that think this will be difficult, requiring liberals to reassess their commitment to less harsh punishment and society as a whole to live with more crime. Even then, reformers will have to deal with powerful incumbent interests like prison guard unions and private prison lobbyists. Still other groups listen to liberals saying the phrase “prison crisis” and hear “prison opportunity.” Conservative policy groups like ALEC want to reduce prison populations with privatized solutions, such as having private parole boards bid to insure prisoners for release.

What all of these approaches take for granted is that government policy runs downhill. We elect leaders, those leaders debate and legislate within a set of institutional frameworks, and the final product is something called “policy.” Hence we can take the result called “criminal justice policy” off the shelf, rewrite the rules and replace it.

An alternative account holds that our policy of mass incarceration reconfigures both the idea of the state and the way it carries out its duties. In this story, a government that creates mass incarceration is the obvious result of the ideologies of neoconservatism and neoliberalism that have come to dominate in the wake of the New Deal liberal order’s collapse.

To see how mass incarceration has reworked our expectations about governance, we need to understand the relationship of policing to the two major political ideologies of the past thirty years and the governance project that came out of them. How did a neoconservative movement that describes itself as being for limited government and liberty become the engine behind a prison state more expansive than that of Russia or Rwanda? And how does the government of the neoliberal imagination, which, by definition, fails at everything it attempts, expand its activities in the one area — imprisonment and the use of force — that has such a high risk of abuse?


When neoconservatives say that they are the party of “law and order,” it is important to remember that they care less for the rule of law than they do for the rule of order.

The modern law and order movement kicks off in 1964 with Barry Goldwater’s speech accepting the GOP nomination. Then a minor issue, law and order had particular resonance in the South, where George Wallace was gaining a following with a similar message. Goldwater, while suffering a major loss in the election, did particularly well among Southern states using this message, something Richard Nixon would put to good use in the next election.

There were good reasons behind the law and order movement’s success in bringing the South into the GOP. Some of these reasons have to do less with a neoconservative project than with a very old conservative project. As historian Robert Perkinson explores in his book Texas Tough, there has always been a distinctly repressive character to the Southern prison, with its chain gangs, forced labor, and limited attempts at reform. These vicious practices, born out of the era of slavery, remain and shape the modern prison. As Perkinson says of the penal labor farms in East Texas, “Nowhere else in turn-of-the-millennium America could one witness gangs of African American men filling cotton sacks under the watchful eyes of armed whites on horseback.”

As political power moved to the Sunbelt and conservatives successfully realigned the South rightward, these brutal tactics became wedded to the Republican Party. The prison is part of the conservative project of race control. As Michelle Alexander argues in The New Jim Crow, mass incarceration locks people of color into permanent second-class citizenship much as the Jim Crow system of de jure and de facto segregation did in the past. Legalized discrimination, political disenfranchisement, and segregation, instituted through techniques like job licensing restrictions and legal requirements for voting, are features of both regimes.

“Law and order” isn’t just the rallying cry of Southern traditionalists, however. It also forms a core of the neoconservative governance project. Take the influential 1982 Atlantic Monthly essay “Broken Windows” by the neoconservative thinker James Q. Wilson. Wilson’s previous theory of the criminal was that “Wicked people exist . . . Nothing avails except to set them apart from innocent people,” a view that began the country’s long path into high levels of incarceration. He expanded on his vision of law enforcement in “Broken Windows,” a vision that is a clue to the heart of neoconservative thinking.

For Wilson, society took a wrong turn when it viewed the ideal role of policing as detectives solving a crime or a system following clear rules agreed on in advance. The real purpose of the policeman was to preserve order, pushing the limits of his or her authority in an improvisational, eternal combat against an almost self-conscious disorder. “[T]he police in this earlier period assisted in that reassertion of authority by acting, sometimes violently, on behalf of the community . . . Solving crimes was viewed not as a police responsibility but as a private one.” The ideal agent in the courtroom isn’t an impartial jury deliberating, but a prosecutor engaged in the same form of combat in the courthouse. The concept of the night watchman is re-purposed: instead of the quiet, passive night watchman looking over the rules of property and law, the government is active, participating, constantly at war with disorder, pushing the laws against its constraints to save the system. This expansion of police power, discretion and punishment isn’t matched by an equal emphasis on those accused.

As Bernard Harcourt examines in The Illusion of Order, broken windows policing is predicated on separating neighborhoods into regular, ordered insiders and disordered strangers. Wilson’s view is that regular insiders are the “decent folks” who need to be protected from the disorder generated by strangers. The police, rather than upholding laws and the rights of citizens, uphold order by regulating the behaviors of disorderly insiders and excluding the disorderly outsiders.  Criminals lose their insider status in this telling, and excluding them from the community becomes a goal of law. The approach is based on a privileging of order over law, for a lack of order is what attracts criminal behavior, always waiting in the wings to descend.

Wilson believed that a “growing and not-so-commendable utilitarianism” lead many to believe that the police should only intervene in crimes where there are harms between people. What these people miss, in Wilson’s neoconservative approach, is that disordered individuals, even if they aren’t directly causing harm to people, may sow the seeds of disorder that can take down an entire community of order. Wilson argues that “Arresting a single drunk or a single vagrant who has harmed no identifiable person seems unjust, and in a sense it is. But failing to do anything about a score of drunks or a hundred vagrants may destroy an entire community.”

This view of policing as less a practice of rules than a perpetual struggle to properly administer violence and maintain hierarchy echoes the link between conservatives and violence that political theorist Corey Robin establishes in his book The Reactionary Mind. Conservatives display “a persistent, if unacknowledged, discomfort with power that has ripened and matured.” Rule that has become complacent and assumed has become weak and debilitating. Robin shows how conservatives have always looked for ways to struggle to renew their dynamism. He argues that many conservatives view “American decadence, traceable back to the Warren Court and the rights revolutions of the 1960s, [as the result of] the liberal obsession with the rule of law.” The supposed liberal imagining of the police — as boring rule administrators or competent investigators — is anemic compared to the reinvigorating struggle of police as a force against disorder.


Michel Foucault defined neoliberalism as a mode of governance that “does not ask the state what freedom it will leave to the economy, but asks the economy how its freedom can have a state-creating function and role, in the sense that it will really make possible the foundation of the state’s legitimacy.” When the state intervenes in the functioning of markets, it isn’t to rectify injustices but instead to further create and maintain the rigor of the economy itself. And when neoliberalism calls for the government to leave markets to their natural order, it refocuses the function of government power on the regulation of activities that fall outside the formal market. This is exactly how law-and-economics scholars view criminal behavior, as well.

There are numerous examples of conservative believers in the free-market criticizing bloated, ineffective government at the same moment they call on it to be even more active as a police presence. Consider the following 1983 speech from President Reagan:

[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.

Right-neoliberal ideology has naturalized this transition for many, even though it strikes those on the Left as incoherent.

However, as Bernard Harcourt argues in Illusion of Free Markets, theorists of the naturalness and supremacy of market exchange have historically also theorized governments that function competently solely within the penal sphere. Indeed, criminality and disorder form the boundary of the rational, ordered free market. The eighteenth-century physiocrat François Quesnay, a major influence on Adam Smith, argued that “All that is required for the prosperity of a nation is to allow men to freely cultivate the earth to the greatest possible success, and to preserve society from thieves and rogues” and that the “only object of man-made, positive law is to punish severely men whose passions are out-of-order.” Early liberals called for laissez-faire while also claiming the term “night watchmen” for the ideal state. The utilitarian Jeremy Bentham believed the government should “be quiet” when it came to the market, while envisioning an all-seeing panopticon prison.

There are two distinct lineages that bring us from there to the Chicago School’s law-and-economics approach to crime. There are those who follow in the footsteps of Bentham, such as the economist Gary Becker in his 1968 “Crime and Punishment: An Economic Approach.” This approach involves applying the concept of optimization and rational behavior modeling to crime and the law. And there are those following Friedrich Hayek, like the law professor Richard Epstein, who adheres to a natural law theory. These views are in tension — Hayek believed that Bentham and the other Utilitarians were Continental theory-influenced betrayers of the British constitutions who “introduced into Britain what had so far been entirely absent — the desire to remake the whole of the law and institutions on rational principles.”

Where these two intellectual traditions intersect is the Coase Theorem, which states that in a world with no transaction costs, negotiations between individuals will always leads to the results that maximize wealth. Coase, a student of Hayek, incorporates Hayek’s notion of “spontaneous order,” and rejects the idea that government could improve on the outcome created by rational individuals bargaining among themselves. Criminal punishment, as Epstein would argue, creates the boundaries of the free market, and as such is the place where the government should focus. Epstein notes, “I do think that the prohibition against force and fraud is the central component of a just order.”

That criminality does not simply act as, but creates the boundary of the free market is even more explicit on the utilitarian side. As the libertarian law and economics jurist Richard Posner has written, incorporating Coase’s notion of transaction costs, “[t]he major function of criminal law in a capitalist society is to prevent people from bypassing the system of voluntary, compensated exchange — the ‘market,’ explicit or implicit — in situations where, because transaction costs are low, the market is a more efficient method of allocating resources than forced exchange.”

This idea of crime as “market bypassing” means that criminal activities not only harm victims but harm society as a whole, as the central mechanism of markets — determining prices and the value of exchanges — is undermined. A thief bypasses both the market for the good she stole and the labor market where she might get the money to purchase the good legally. Posner is unafraid to take this to its logical conclusion, arguing that“[t]he prevention of rape is essential to protect the marriage market.” Since these behaviors are not consequences of the market or embedded within it, this is where the government finds its proper role. Where the government should keep a hands-off approach in all matters economic, it should take a strong and punitive stance on all the criminal activity that takes place outside the natural order of the market.

A New Form of Governance

The New Deal governing philosophy worked, however imperfectly, to create a space of economic security in a market economy. By encouraging full employment, mass consumption and unionization along with a safety net for those who fell through the cracks, the chaos that comes with the convulsions of market economics could be mitigated and the business cycle itself could be managed. However incomplete that project was at the beginning, it imploded in the urban crises of the 1960s and the profitability crisis and stagflation of the 1970s.

One way to understand how governments govern is to examine the ideal subject they work upon. Historically, in the United States, these subjects have ranged from the landowning farmers of the early Republic to the freedmen of the nineteenth century. The “war on crime” turns the ideal subject of governance from the industrial worker of the New Deal into two opposed figures: the potential criminal and the potential victim in need of redress.

The neoconservative and neoliberal worldviews described above can be seen as reactions against the New Deal order. The government as manager of regulatory and service agencies in the New Deal, judged by its ability to provide mass prosperity, becomes an agent of order intent on policing activities and people beyond the realm of market logic. And, crucially, government policy is seen to be legitimate only when it follows the logic of framing problems as analogous to crime and crime control.

The sociologist Loïc Wacquant has described the new government rationality associated with these intellectual revolutions as a “centaur state.” The state governs with “a liberal head mounted upon an authoritarian body” — laissez-faire for those at the top, but “brutally paternalistic and punitive downstream.”

The neoliberal vision of economic regulation involves, at most, providing economic incentives for those at the top and, to use the popular term of behavioral economics, “nudging” people against their behavioral quirks towards optimal behavior inside “choice architectures.” Policy might, for example, subtly encourage long-term savings decisions and discourage poor nutrition choices. Other than fixing these quirks, the government should get out of the way of the free market.

The regime for the poor and those within the criminal justice system is both policed and punitive and — in accordance with behavior that exists outside natural, market ordered society — heavily regulated and ordered by the state. Welfare and aid programs become a disciplinary mechanism for the working poor, with government monitoring and sanctioning taking an increasing role in guiding behavior. According to law professor William Stuntz, the courtroom has become a factory for processing; 95 percent of criminal convictions now come from a guilty plea, avoiding a trial. Arrests have risen almost sevenfold with only 60 percent more prosecutors needed. Meanwhile, prosecutors have been able to pull off the impressive trick of increasing the number of plea bargains while also raising the average length of imprisonment during this time period. The lived experience of prisons is also more punitive. Our current prison system is characterized by severe overcrowding, inadequate medical care, infection rates for HIV, Hepatitis C, tuberculosis, and staph far higher than on the outside world, the degradation of the custodial experience, high costs of keeping social ties intact, punitive long-term isolation, and the ever-present threat of violence and rape.

The extensive government regulation of behavior extends after the prison. As UCLA law professor Sharon Dolovich argues in “Creating the Permanent Prisoner,” those leaving prison enter into a dense web of government management, simultaneously punitive and neglectful. People who leave prison face “[b]ans on entry into public housing, restrictions on public-sector employment, limits on access to federal loans for higher education, and restrictions on the receipt of public assistance . . . The American Bar Association Criminal Justice Section recently embarked on a project to catalogue all state and federal statutes and regulations that impose legal consequences on the fact of a felony conviction. As of May 2011, the project had catalogued over 38,000 such provisions, and project advisers estimate that the final number could reach or exceed 50,000.” Together, these create a new kind of subject, someone who exists permanently on the outside of our civilization, never meant or able to reintegrate back into our social spaces.

This reworking of governance expands beyond the realms of economic regulations and the social safety net to government broadly, as Jonathan Simon argues in his book Governing Through Crime. Governments are seen to act legitimately when they act to combat activities that can be analogized to crimes. The concepts and technologies of the criminal justice system permeate all government activities. The neoliberal vision of government finds this to be the proper role of government, and the neoconservative vision calls for the state to perpetually be pushing the boundaries in any space that allows for combating potential disorder.

Consider urban policy as a policy space where these two ideologies mix. The anthropologist Neil Smith argues that gentrification has created a “revanchist city,” where the goal is to reclaim the lost frontier of urban spaces from undesirables. This is a mix of creating good economic incentives for developers and desirable citizens while also creating heavily policed zones against undesirables. Public spaces are quasi-privatized through funding and maintenance when they aren’t private spaces with public access obligations. Benches are designed so people can’t sleep on them, public restrooms disappear from public spaces, and privatized parking meters require credit cards to park. Numerous other design choices shift the public sphere away from those at the margins, while extensive police presence claims the remaining spaces.

The “War on Terror” has made government agents, from presidents to CIA interrogators, into actors who aren’t concerned with rules-based governance but instead improvise against disorder and the courts that would try to limit their abilities. This mirrors the police officers fighting against broken windows.

The use of long-term detention to exclude “enemy combatants” based on group associations with outsiders, rather than individual guilt, mimics the logic of mass incarceration and neighborhood order preservation. Conservatives attacked John Kerry for arguing that the “war on terror” should be a law and order issue. They had the same foes as James Q. Wilson — courts, juries, rules, and evidence.

Immigration has been transformed from an issue of assimilating new people and cultures to an issue of policing entirely read through the language and logic of crime management. A new focus on guarded walls, from the border with Mexico to private communities, informs the landscape. In a 2002 opinion from Attorney General John Ashcroft, the government found that local and state police have an “inherent authority” to enforce federal immigration laws. Critics argued that, beyond the lack of practical resources and ability to actually enforce civil complaints related to immigration status, local police enforcing federal immigration status would blur the distinction between criminal and civil enforcement of immigration law, and bring immigration under the policy architecture of the war on crime. The Secure Communities program, pushed under the Obama administration, makes an immigration check part of the booking process police administer, collapsing this distinction further.

In education policy, resources and priorities for education policy in struggling school districts have turned away from ideas of racial equality towards managing and a population of youths as potential criminals and victims. Metal detectors, undercover police, and persistent surveillance technologies are a new feature of the school landscape. Two Houston-area school districts have started a pilot program of issuing students identification badges with radio signals that allow administrations to track them. (It’s the same technology used for cattle.)

More broadly, policy has been redesigned to be concerned with “moral hazard.” Everything from health care mandates to laws surrounding mortgage and student debts are less about providing goods broadly to citizens than making sure nobody is shirking or behaving irresponsibly. Managing crime also becomes the best justification for advancing other, especially right-wing, policy agendas. Pro-life efforts to create “personhood” status for zygotes have failed, but efforts to create a special class of crimes against pregnant women have experienced major successes. Managers have shifted from using high “efficiency” wages in order to get the best work out of their employees to surveillance and security techniques. And those techniques, from widespread drug testing to monitoring against “time theft,” borrow their urgency from the language of crime.

As recently as the 1960s there was a wave of literature arguing that the prison was becoming obsolete. Now the prison stands as a key mechanism for how the government has dealt with its own powers, and this has reconfigured the role of government. The law-and-order movement invokes a radically different role of the state in relation to its citizens than the one of the post–New Deal era. Though an incomplete project, the New Deal had a model of the state as a guarantor of economic security and freedom. Now the state primarily interacts with society as a maintainer of order. For those hoping to rebuild freedom through the state, finding a new vision of how government works needs to be at the front of the agenda.