How and why has the prison returned to the institutional forefront of the advanced societies, when four decades ago analysts of the penal scene were convinced it was on the decline, if not on the path toward extinction? In my book Punishing the Poor, I make three arguments to resolve this historical conundrum. First, the expansion and glorification of the police, the courts and the penitentiary are a response not to criminal insecurity but to the social insecurity caused by the casualisation of wage labor and the disruption of ethno-racial hierarchy. Second, we need to reconnect social and penal policies and treat them as two variants of poverty policy to grasp the new punitive politics of marginality. Third, the simultaneous and converging deployment of restrictive “workfare” and expansive “prison fare” partake of the forging of the neoliberal state.
Ramping up the penal state in response to social insecurity
My first thesis is that the ramping up of the penal wing of the state is a response to social insecurity, and not a reaction to crime trends. In the three decades after the peaking of the Civil Rights movement, the United States went from being a leader in progressive justice to apostle of “zero tolerance” policing, architect of “Three Strikes and You’re Out,” and world champion in incarceration. Why? The conventional answer is that this stupendous expansion of punishment was driven by the rise in crime. Mais voilà, victimization first stagnated and then decreased during this entire period. Consider this simple statistic: the US held 21 prisoners for every 10,000 “index crimes” in 1975; thirty years later, it locked up 125 prisoners for every 10,000 crimes. This means that the country has become six times more punitive, holding crime constant.
To explain this punitive turn in penal policy in the United States, we need to break out of the crime-and-punishment box and pay attention to the extra-penological functions of penal institutions. Then we discover that, in the wake of the race riots of the 1960s, the police, courts and prison have been deployed to contain the urban dislocations wrought by economic deregulation and the implosion of the ghetto as an ethno-racial container, and to impose the discipline of insecure employment at the bottom of the polarizing class structure. As a result, the resurging prison has come to serve three missions that have little to do with crime control: to bend the fractions of the post-industrial working class to precarious wage-work; to warehouse their most disruptive or superfluous elements; and to patrol the boundaries of the deserving citizenry while reasserting the authority of the state in the restricted domain it now assigns itself.
If you cross the Atlantic, you will note that Western Europe sports comparatively modest rates of confinement, ranging from one-sixth to one-tenth that of the United States. But this must not hide two crucial facts. First, penalization takes many different forms and is not reducible to incarceration. Second, incarceration rates have shown steady and sturdy growth across Western Europe since the early 1980s: they have grown by more than one-half in France, Italy, and Belgium; nearly doubled in England and Wales, Sweden, Portugal, and Greece; and quadrupled in Spain and the Netherlands, long held up as model of humane penality. In reality, a drift towards the penalization of urban marginality has swept through Western Europe with a lag of two decades, albeit on a smaller scale (commensurate with the makeup of the state and social space in these societies).
This drift presents three distinctive features. First, the new penal laws embraced by European governments typically “bark” louder than they “bite” because the texture of social and economic citizenship is more robust, human rights standards thwart excessive criminalisation, and judicial professionals have been able to resist penal extension from within the state apparatus. But hyping “insecurity” and promoting crime-fighting in and around districts of dereliction to the rank of government priority, ahead of fighting unemployment in these same areas, has definitely shifted government priorities in favour of penal posturing and action.
Second, European societies endowed with a strong statist tradition are using the front end of the penal chain, the police, rather than the back end, the prison, to curb social disorders and despair in low-income districts. One example: in France, the inmate population has risen by one-third over the past decade, but during that same period the number of persons arrested and held overnight for a “garde à vue” in a police lockup nearly tripled to approach the extravagant figure of one million. Third, instead of a brutal swing from the social to the penal management of poverty as in the United States, continental countries have intensified both, expanding welfare protection and police intervention simultaneously in a contradictory thrust that has both stimulated and limited the extension of the punitive mesh.
These three features define a “Western European road” to the penalisation of poverty which is not that of the United States. Yet, from a longer macro-political perspective, the dominant trend is similar: a punitive revamping of public policy that weds the “invisible hand” of the market to the “iron fist” of the penal state.
Re-linking social and penal policy
My contention here is that welfare and criminal justice are two modalities of public policy toward the poor, and so they must imperatively be analyzed –and reformed—together. Supervisory workfare and the neutralizing prison “serve” the same population drawn from the same marginalized sectors of the unskilled working class. They are guided by the same philosophy of moral behaviourism and employ the same techniques of control, including stigma, surveillance, punitive restrictions, and graduated sanctions to “correct” the conduct of their clients. In some states in the United States, TANF (welfare) recipients stand in line together with parolees to undergo their monthly drug tests to maintain eligibility for support. In others, parolees who fall into homelessness because they cannot find a job are returned to prison for failure to maintain a stable residence.
Nowadays, you cannot track penal policy without reckoning with social policy, and vice-versa. You cannot understand trends in offending without factoring in the sea changes in welfare provision, public housing, foster care, and related state programs, including the oversight of irregular migration that set the life options of the populations most susceptible to street crime (as both perpetrators and victims).
Crafting the neoliberal state
My third thesis is that the meshing of workfare and prisonfare partakes of the making of the neoliberal state. Economists have propounded a conception of neoliberalism that equates it with the rule of the “free market” and the coming of “small government” and, by and large, other social scientists have adopted that conception. The problem is that it captures the ideology of neoliberalism, not its reality. The comparative sociology of actually existing neoliberalism reveals that it involves everywhere the building of a erection of a Centaur-state, liberal at the top and paternalistic at the bottom. Then neoliberal Leviathan practices laissez faire et laissez passer toward corporations and the upper class, at the level of the causes of inequality. But it is fiercely interventionist and authoritarian when it comes to dealing with the destructive consequences of economic deregulation for those at the lower end of the class and status spectrum. This is because the imposition of market discipline is not a smooth, self-propelling process, it meets with recalcitrance and triggers resistance; it translates into diffusing social instability and turbulence among the lower class; and it practically undermines the authority of the state. So it requires institutional contraptions that will anchor and support it, among them an enlarged and energetic penal institution.
The linked stinginess of the welfare wing and munificence of the penal wing under the guidance of moralism are profoundly injurious to democratic ideals. As their sights converge on the same marginal populations and districts, deterrent workfare and the neutralizing prisonfare foster vastly different profiles and experiences of citizenship across the class and ethnic spectrum. They contravene the fundamental principle of equality of treatment by the state and routinely abridge the individual freedoms of the dispossessed. Moreover, they undermine the consent of the governed through the aggressive deployment of involuntary programs stipulating personal responsibilities just as the state is withdrawing the institutional supports necessary to shoulder these and shirking its own social and economic charges. In short, the penalization of poverty splinters citizenship along class lines, saps civic trust at the bottom, and sows the degradation of republican tenets. The establishment of the new government of social insecurity wedding restrictive workfare and expansive prisonfare discloses, in fine, that neoliberalism is constitutively corrosive of democracy. Yet, it is the result of policy choices, not a preordained necessity. Other historical paths out of the turmoil of the 1960s and the stagflation of the 1970s were open, and remain open. But to locate them we must first elucidate the overall architecture of the institutional maze which contains them, and the deep causes of the shift to the punitive management of poverty. It is my hope that the debates and discussions on this openDemocracy forum will be yet another step in that direction.