Bernard E.’s Comments (group member since Feb 24, 2011)

Bernard E.’s comments from the Q&A on "The Illusion of Free Markets" with Bernard Harcourt group.

Just got this e-mail from a friend and former student, and it seems it fits in this discussion thread:

Dear friends:

This week I incorporated a not-for-profit organization the Prison Resources Foundation, the mission of which is to provide free educational resources to prison libraries. Reading and learning are among the most powerful means of preparing inmates for re-entry to society. But as budgets get slash around the nation, programs for prisoners, who have few advocates, are among the first on the chopping block. I am still learning about what kinds of materials prison libraries need most. If you want to donate books or CDs in good condition or if you want to help me organize fund raising events, please contact me. In meantime, follow us on twitter!

Gabe

twitter.com/prisonresources

Gary wrote: "your use of liberal and neoliberal, while clear in the context you provide, do not conform to the popular meanings of those terms in current political discussion..."

You are right, Gary, the terminology is somewhat confusing. The term "liberal" has several different meanings. Here are at least three:

Liberal versus conservative: this is perhaps the most common usage of the term "liberal" (and the one you refer to). On this dimension, liberals tend to be Democrats and there are shades of liberalism among Democrats.

Liberal versus illiberal: this is more of a political theory notion that often, but not by any means always, overlaps with the first meaning of liberal. Here we think of thinkers like John Stuart Mill or HLA Hart who favored limits on government intervention except where there is harm to an individual or to society. In the political theory tradition, the use of the term "liberal political theory" goes further back of course to John Locke. The important notion here is liberty.

Economic liberalism versus mercantilism: this is the contrast between Adam Smith (on some readings) and more interventionist economic policies of planning and redistribution. This is the meaning of liberal that then gets contrasted, later, to socialism, say, in the work of Hayek.

Now, it is the third meaning of liberalism and its current iteration, neoliberalism, that I use in this work and that others, such as David Harvey and everyone who uses the term neoliberalism, has in their mind. This is the meaning of liberalism that is associated with the debate over "Neoliberalism."

To be clear then: Neoliberalism is a new form of economic liberalism. It is, for instance, the Chicago School of Economics. It argues for free markets and privatization.

It is indeed unfortunate that there is confusion over these terms; but I hope this helps clarify any confusion.

What is the relationship between neoliberalism and punishment? I've just posted my lengthy take on this question over at Balkinization, but would love to discuss this more...

Thanks, Pattie, for getting to the heart of the matter! I really appreciate it! Let me make a couple of comments before I too get to the heart of the matter… (as quickly as possible).

First, while I agree that most reasonable people should know full well that free markets aren’t really free, the fact is that the opinion polls suggest that a vast majority of people believe that the “free market system” is the best economic system around. 71 percent of respondents in the United States agree with the statement: “The free enterprise system and free market economy is the best system on which to base the future of the world.” (This is from the Program on International Policy Attitudes (PIPA) at the University of Maryland). So I think that we have to deal with this puzzling fact: most people believe that even if “free” does not mean “completely, entirely unregulated,” most Americans embrace the free market.

So, to summarize this first point: though a lot of us realize that the free market is actually regulated, a majority of our fellow citizens believe that markets should be free and that the free market system is the best system in the world (essentially because government is incompetent).

Second, the link. Here, the place to begin is the paradoxical belief that the government is competent when it comes to policing and punishing (and external security as well, i.e. the military). I say it is “paradoxical” because it produces two very different views of the state: (1) an incompetent state that can’t manage the economy, but (2) a competent state that can manage crime and punishment.

This paradox is the link, in the sense that it is what makes us resist government intervention in economics, but embrace government intervention in the field of crime and punishment. It is what makes us less resistant to criminalizing all deviant behavior. It makes us less resistant to the massive prison expansion that we witnessed in this country.

The paradox is captured well in this quote by Ronald 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. While crime was steadily increasing, the Federal commitment in terms of personnel was steadily shrinking…” Notice that the government is viewed as bloated and incompetent in the area of social programs and economic regulation; but legitimate and competent in the area of crime and punishment. This reduces our resistance to amassing prisoners and inflating our jails.

Now, to the heart of the matter: “Who cares?” Good question! Harsh, but good question! Perhaps you are right, Pattie, that some people will ask that question, but I am not sure the majority would. Who cares? Well, I think we can start with the 7 to 8 million plus Americans who are under correctional supervision (either in prison or jail, or under parole or probation) as well as the dozens of millions of family members and friends of theirs. Then I think we could expand to all of the people who are directly and indirectly affected by the social instability caused by removing so many from their commnities and families. And from them, I think we can then enlarge the picture to all the people who have a sense that the inequality being produced by our system of mass incarceration is unacceptable.

Frankly, I think we all should care given that we are all responsible for mass incarceration in this country. And that is really the heart of my intervention. What I try to do in my work is address the question “How did we let this happen? All of us, that is. What role have we all played?” I think it is too easy to point at specific instances of neoconservative law-and-order interventions (three-strikes, mandatory minimums, etc.) and blame neoconservatives. We need instead to probe how our commonly held beliefs about the state have made it so easy to criminalize and punish. We need to explore how our own set of beliefs and world views have contributed to mass incarceration. That is the intervention I am trying to make. That is really the heart of the matter.

Thanks for these fascinating comments – truly fascinating. On the question of prisoner associations, I agree entirely with Rumbustious that there are serious questions regarding voter participation among prisoners, ex-prisoners and their families. Chris Uggen and Jeff Manza have done remarkable work on the issue of felon disenfranchisement in their book, “Locked Out,” (in which they show that the Bush/Gore elections would have clearly gone to Gore if there had been no felon disenfranchisement). Tom Miles at the U of C had an excellent paper addressing some of their findings and argued essentially that the low voter turnout among ex-felons may have reduced the effects. (The paper was called “Felon Disenfranchisement and Voter Turnout’ and was at 33 J. Legal Stud. 85 (2004)). In any event, what is clear is that the issues of voter turn-out have to be addressed as well. Is there any reason not to believe, though, that mobilization through a prison PAC might also affect voter turn-out? In other words, it would help with that problem too!

Corentin in going to be coming to the University of Chicago to pursue this research on prisoners’ voices, and I would like to find ways to hook him up with prison authorities and prisoners in this country to see if he could collect some materials relevant to the situation in the USA. So if anyone has any leads on that, please do mail him off-line. My understanding of this Goodreads site is that there are ways for people to e-mail or communicate with each other off the grid. Please do!

Ever since reading this New Yorker article, “Boom Doctor,” about the economist Justin Yifu Lin, head economist of the World Bank, I have been wondering if he would agree with the main thesis of The Illusion of Free Markets and whether he is, effectively, doing the kind of economic work that I suggest in the prolegomenon needs to be done. Well, this requires more fleshing out, and I will in a future post (headed to the airport, though), so more on this later, but if anyone knows his work better than, I would love to know what you think. Cheers!

In response to an earlier post, John (rightly) said that “there is no lobby for prisoners.” And of course, I have often said the very same thing.

But that got me thinking: Why exactly isn’t there a prisoners’ alliance PAC? Imagine how many family members of inmates, former inmates, and persons on parole or probation would be interested in contributing to a political action committee to support state and federal candidates who make mass incarceration an issue. With over 2.4 million persons behind bars today, and more than 7 million under correctional supervision, there would be a large network of individuals, inside and outside prison, who would be willing to contribute, I would think.

This reminds me of a wonderful film by Claude Lelouche from 1972 called L’aventure, c’est l’aventure, at the end of which the protagonists kidnap the Pope and ask, as a ransom, that every Catholic give one French Franc for his liberation! (It’s a hilarious film with, among others, Lino Ventura, Jacques Brel, Johnny Halliday, and others – a real blast from the past!). In any event, the analogy is that one Franc for each Catholic was not that much, but pooled together can amount to a nice war chest!

My partner tells me she thinks this is one of my ideas that could remain private. I wanted to know what you thought?

So we left the last discussion topic with the question: How does the idea of the free market "naturalize" distributional outcomes?

I think that Paul Krugman's recent editorial on Naomi Klein's Shock Doctrine in the New York Times here provides a fabulous illustration. In the editorial, Krugman talks about a provision in the Wisconsin bill that would quietly "let the governor privatize any or all of the [public utility] facilities at whim. Not only that, he could sell them, without taking bids, to anyone he chooses. And note that any such sale would, by definition, be 'considered to be in the public interest.'”

From a conventional Chicago School perspective, this provision would simply "unleash the natural forces of the free market," and allow privatization to produce more efficient results. But, and I think this should be obvious, the provision is nothing more than reregulation of a regulated space that gives the governor the exclusive ability to redistribute wealth freely.

What I argue in the book is that the idea of natural order and efficiency associated with the concept of the "free market" has come to naturalize the market itself and thereby hide the massive redistributions that take place there. It masks the state’s role and the extensive legal and regulatory framework that embeds all market transactions. And when we start to believe that the markets are operating on their own, we fail to pay sufficient attention and properly scrutinize how the administration of the markets actually redistributes wealth. The idea of natural order or, today, of market efficiency, I suggest, obfuscates from view the massive redistribution of wealth and resources that necessarily accompanies the inevitable organization of economic exchange.

Mia -- I think I will turn your comment into tomorrow's topic: how the idea of "free markets" naturalizes the outcomes. Yes, let me do that... and let me explain in the topic header. Thanks!

Good question, Bob, about Europe and other countries that have also embraced laissez faire policies, or what some call "neoliberalism."

My impression is that in the modern period the United States may be an outlier in the magnitude of its prison population, but that there are surprising similarities with Western European countries as to the overall recent trends: the larger Western European countries have, to a large extent, mirrored the trends in the United States, with some lag and a lot of attenuation. This suggests -— although a lot more work needs to be done here -- that the common element of neoliberalism may well remain significant.

Here are three important things to consider:

First, many European countries institutionalized in psychiatric hospitals at higher rates during the mid-twentieth century and, in this sense, may have used mental institutions rather than prisons as a way to control those deemed deviant.

Second, many European countries institutionalize individuals in mental hospitals at high rates today, especially when compared to their rates of incarceration. So there may be substitution there.

Third, like the United States, many European countries have seen rising rates of incarceration at the turn of the twenty-first century. One recent study has identified positive and statistically significant increases in imprisonment over the period 1992 to 2001 in Belgium, Germany, Great Britain, Ireland, and the Netherlands.

(I present some graphs about this in the book at pages 227 to 231 if this is something that really interests you. I find it fascinating).

Overall, then, the American penal sphere may be several magnitudes larger than those of other Western liberal states, but the trends and developments over the course of the recent past may converge. There is no doubt that the timing, intensity, and impact will differ as between all these countries, and that there are unique historical, cultural, and institutional factors that will produce important variations. The question is whether and how neoliberal ideas may possibly have shaped these trends.

To be frank, I would need to do more work on this, but my sense is that neoliberalism is playing a role in the other countries as well. What is clear is that they have been experimenting with a lot of the other new penal techniques as well. In the area of actuarial methods and instruments, Canada has been experimenting with actuarial tools and the logic of actuarial prediction has penetrated a number of European countries, such as France, which warmly embraced preventative detention (rétention de sûreté) in 2007. Canada and many European countries have also embraced the increased use of order-maintenance policing strategies, such as zero tolerance and broken windows policing; harsher treatment of juvenile offenders; increased use of video surveillance, biometric data collection, data mining, and information gathering through initiatives such as CCTV video surveillance in the United Kingdom, and DNA database collection in England and in France; and harsher sentencing practices, including the adoption of mandatory minimum sentences, “three-strikes laws,” drug and gun enhancements.

There is a lot more to say, but that's a start at least. On this question, you should also look at the work of Nicola Lacey, Alessandro De Giorgi, and Mick Cavadino and John Dignan. Thanks!

I keep coming back to this idea that there is a significant tension between two different conceptions of liberty and that this tension has an important effect on the paradox of laissez faire and mass incarceration. It is a tension between the notion that freedom means "no government intervention" and the different idea that liberty means "being well governed." (I think that the Chronicle got at this idea well in their piece on the book here).

If, as I argue in the book, there is no such thing as an unregulated space (there is no "free" market), then the first way of thinking about freedom (as no government intervention) is essentially meaningless. The idea of liberty would then turn on the question of how or when we embrace or appropriate the forms of organization and governance that make up the fabric of society and economy. Thoughts?

Thanks Che! The conference at Princeton with Cornel West and Michelle Alexander looks fabulous and the ongoing movement in Alabama, headed to LA, will certainly mobilize around the issue. I'll disseminate the information on other sites. And now, post another topic! Thanks! Bernard.

Good points, both. I think that you’re right, Rumbustious (what a great screen name!), that the budget debates are going to be skewed importantly because “no one speaks for the incarcerated.” Since budgeting is a political process that is essentially about lobbying, the lack of a lobby is going to have a significant impact. I also think, John, that there may be log-rolling, which will never advantage decarceration since, again, the prisoners have little to offer. The prison guard lobby, by contrast, will. So there may well be institutional political design questions that account for the imperviousness of the corrections budget line. But there has to be something else at play, because the whole carceral field is never (or rarely) examined in terms of human capital and economic return. It's not just at budget time...

You’re right, John, that most of the cost of mass incarceration today is borne by the states, and we need to be paying more of our attention there. But the federal budget debates are the perfect illustration of the problem. What makes them so fascinating is that (1) we have a Democratic presidential administration that explicitly calls for reducing mass incarceration and has plans to release well-behaved inmates, (2) we have continuing drops in violent crime at the national level, (3) we are slashing social programs because of our exponential federal deficit, and yet… the Obama administration just proposed an 11 percent increase in spending on the federal prison system. What makes this budget line impervious? Why couldn’t savings be found there to protect one or two social programs? The same problem can be seen at the state level in states like California, New York, Texas…

There's been some traffic on the web (but not enough) on the issue of the costs of mass incarceration in these times of fiscal crisis, budget deficits, and the slashing of social programs. I've collected some of the blog posts here. Let's start our discussion by asking the simple question: Why aren't corrections budgets at the very heart of our federal budget debates today? What is it about punishment and prisons that seems to escape the logic of cost analysis?

We'll start the discussion on March 1, 2011, and we'll try to keep at the heart of our discussion the central question: How does the belief in the free market relate to our punishment practices today?