Liberalism and prison: correlation or concomitance?

With The Illusions of Free MarketsBernard Harcourt adds a piece to his patient puzzle. This draws the landscape of a penal world and a social world freed from the illusions that suffocate them. The illusion of order, first, and one of its major by-products, so-called zero tolerance police policies ; then the illusion of prediction, and its actuarial instruments on the probability of recidivism or inclination to criminal behavior. The piece that Harcourt adds to the puzzle is nothing less, today, than “ the natural order “.

The natural order is based on a double illusion. Firstly, the illusion of a constitutive, necessary, natural freedom, while the market is first and foremost the product of regulation. The illusion, then, which masks the other side of the market, the incarceration, this necessary incapacitation of delinquents, those who prevent freedom of exchange, commerce, consumption. Thus, Harcourt tells us, the other side “ natural » of the natural order is the immense prison complex that we know in the United States, where more than two million inmates are behind bars, while France has, every year, 65,000. from his publications, Bernard Harcourt arranges the pieces of a vast puzzle which depicts modern penalty, its genealogy, and the modalities of amending or changing it. There is no doubt that this puzzle, once all the pieces are assembled and ordered, will constitute a major piece in the reflection on penal policies. But a puzzle piece taken in itself, isolated from its neighbors, naturally gives rise to some reservations. Can the link between the growth of detention rates and the triumph of liberalism be studied separately from the other dimensions producing variations in the detention rate, which is the ultimate indicator of Harcourt’s demonstration? ? While Harcourt’s previous works considered penal policies or instruments as the product of penal or criminological doctrines, his latest book introduces a rupture, since it brings two worlds together. a priori impervious to each other (the economic doctrine and the decision to confine). Is there a real correlation between these two worlds, or a simple coincidence between two phenomena independent of each other? ?

The influence of criminology

To simplify, we will limit ourselves to the second period studied by Harcourt, the one which began in 1973 (starting point of the exponential growth in detention rates). Harcourt emphasizes the period of deployment of liberal, or monetarist, ideas, from Barry Goldwater’s campaign in 1964, to Reagan, Clinton and Bush father and son. But it is in Reagan that he finds his champion of the double rhetoric of the natural order (freedom on the markets, repression of the criminal):

This is precisely what we are trying to do to the bloated Fed Gvt 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 ​​pub order and law enforcement, for example, we’re reversing a dangerous trend of the last decade. While crime was continuously increasing, the Fed commitment in terms of personnel was continuously shrinking (intervention by President Reagan during a fundraising evening, cited p. 40-41).

Is Reagan at this point the exporter, in the field of penalties, of monetarism, the merits of which he praises in terms of disengagement of the State? ? Nothing is less certain. John Hagan, in a recent work, shows another side of the character, different from his monetarist trappings: Reagan is a politician who, unfortunately one could say, got into criminology. Elected governor of California in 1966, he waged a singular fight against the Berkeley school of criminology, the first of its kind in the United States, founded the same year of his election, and had his future judicial advisor appointed, promoter of the doctrines most discriminatory penal sanctions, Erwin Meese, to the school council, only to have it closed ten years later (Hagan, p. 101-103). Sensitive to monetarism when it comes to the State and its economic policy, Reagan is simply sensitive to criminology when it comes to crime. The two worlds are distinct, and criminological doctrine does not presume that of the natural order.

And what was promoted at that time by doxa of this strange discipline, which is entirely based on another illusion, that of a scientific autonomy indexed to its object, crime and the criminal ? In the wake of the famous theses of Patrick Moynihan, for whom the structure of the black American family presented highly “ pathological », like the propensity to delinquency, the criminology of the 1970s developed two strong ideas: the “ hard core » and “ criminal career “. The first notion refers to the idea that, in any cohort of men, a minimal proportion is expected to commit a maximum number of offenses. These criminals, identifiable from a very young age, will remain criminals throughout their lives: crime is, so to speak, their “ career “. Let’s listen to President Reagan before a meeting of police executives in New Orleans in 1981:

Study after study has shown that a small number of criminals are responsible for an enormous amount of the crime in American society. A study of 250 criminals indicated that over an 11-year period, they were responsible for nearly half a million crimes. Another study showed that 49 criminals claimed credit for a total of 10,500 crimes (quoted by Hagan, op. cit.p. 108).

Penal doctrine, a racial policy

Reagan’s point of view is intended to be empirical, in response to the growth of crime (a phenomenon that Harcourt, curiously, rarely mentions in his work):

It’s time for honest talk, for plain talk. There has been a breakdown in the criminal justice system in America. It just plain isn’t working. All too often, repeat offenders, habitual law-breakers, career criminals, are robbing, raping, and beating with impunity and, as I said, quite literally, getting away with murder. The people are sickened and outraged. They asked we put a stop at it (quoted by Hagan, op. cit.p. 108).

We see it: Reagan does not respond to the urgency of a philosophical necessity, but to crime. The rate of “ crime noted » (that is to say brought to the attention of the prosecuting authorities, therefore likely to be judged), this unformed aggregate of the most diverse offenses, was multiplied by three from 1960 to 1980. Let us mention the most spectacular, blood crime: there were 9,500 murders in the United States the year Reagan was elected governor of California ; 22,000 the year he became president of the United States, an aggregate which would not fall below 16,500 under his dual presidency. The response to crime is, as we have said, nourished by criminology and the theory of the hard core of born criminals. It was she who nourished the constant policy of “ lock away and incapacitation from future offense » (J. Hagan, p. 111), and the growth in detention rates. The influence of James Q. Wilson on Reagan is direct: his work Thinking About Crime (1975) deploys the argument of the monstrosity of the criminal, an irreducible danger for society. The influence of Erwin Meese, who transformed penal doctrine into racial policy, is also central. We will blame him for the war on drugs and its corollary, the 1 to 100 doctrine between crack and cocaine, which led to the over-incarceration of black people. He will also be blamed for the establishment of minimum penalties (the “ mandatory sentences “), the effects of which were multiplier not so much on incarcerations (flows entering prison) as on the lengths of sentences handed down, and therefore on detention rates. Thought by its Democratic promoters (Joe Biden, Ted Kennedy, Alan Dershowitz, etc.) as an instrument to fight against the discretionary and potentially racist power of certain judges, the law on minimum sentences adopted under pressure from Reagan actually consisted of a political and centralized administration of prescribed sentences, calling for an over-conviction of drug offenses, and therefore leading to an over-penalization of blacks.

If Harcourt sees a monetaristo-carceral continuity from 1973, we could estimate that from the 1980s the prison is quite simply the major instrument of “ incapacitation » of the black male urban classes. In this sense, prison policy, however bifid it may be, has become autonomous around its own project, a racial project.

Hagan and Harcourt similarly characterize the elites producing penal policies under Reagan, seeing Meese “ bring together and galvanize a group of militant and cultured ideologues of religious conservatives and market advocates referred to as the Law Economic Analysis Movement “. But the proximity of two cognitive universes does not necessarily mean that one is the source of the other. On the contrary: it is not required to have a monistic point of view on the world to develop a coherent perception of it. When the Republicans and, following suit, the Democrats, think of crime, they think of it as an object in itself, intelligible by means of a particular discipline, criminology, and not necessarily as the reverse side of an economic doctrine. , that of the natural order.

Constructing the relationship between detention and liberalism cannot be an explicable isolate in itself, but constitutes a particular piece of a larger puzzle. Moreover, in the preceding work, Against PredictionHarcourt used the elements that we have cited on the criminological theories of the hard core and of incapacitation, to demonstrate their link with, this time, not liberalism, but the growth in the number of States using the actuarial tools of prediction of recidivism, instruments of the doctrine of selective neutralization.

The growth in detention rates, which haunts the American democratic conscience, is therefore indeed attributable to a multitude of factors. Bernard Harcourt insisted, this time, on the liberal climate. No doubt he overvalued his genealogical approach. The final twist to his puzzle will probably not be a final piece, but the mapping of the circulation of ideas and men who have allowed various thoughts and various instruments of government to make the United States a unique case of confinement on a large scale of its populations, and its black populations in particular. The pieces of the puzzle now need to be put together.