From the SelectedWorks of Kevin Crow

April 2015

The Emerging Neoliberal Penality: RethinkingFoucauldian Punishment in a Profit-DrivenCarceral System

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THE EMERGING NEOLIBERAL PENALITY: RETHINKING FOUCAULDIAN PUNISHMENT IN A

PROFIT-DRIVEN CARCERAL SYSTEM

BY KEVIN CROW*

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TABLE OF CONTENTS

I. INTRODUCTION..3

a. Illustration 1: Privatization (Punishment for Profit)3 b. Illustration 2: The Drug War (Mass Incarceration).4 c. Illustration 3: Biopolitical Governmentality..5 d. Argument Summary8

II. DISCIPLINE AND PUNISH: PRISONS AS INSTITUTIONS OF NORMALIZATION..10

a. The Disappearance of the Spectacle and the Emergence of the Era of the

Soul10 b. Foucauldian Biopower and Power-Knowledge...11 c. Technologies of Justification: Illegalities of Property, Illegalities of Rights, and

the New Gentle Punishment.13 d. Normalization Through Instruments of Disciplinary Punishment: Hierarchical

Observation, Normalizing Judgment, and the Examination..15

III. GOVERNMENTALITY IN NEOLIBERAL SOCIETIES..18 a. Governmentality and Neoliberal Citizenship: Programs and Technologies of the

New Freedom19 b. Neoliberal Rationalities and the Free Market: Generalizing the Scope of the

Economic...21 c. Normalizing the Rules, not the Individuals: Rethinking The Role of Criminality

in Neoliberal Societies..23

IV. THE PRISON-INDUSTRIAL COMPLEX IN THE UNITED STATES..24

V. MASS INCARCERATION AND PRIVATE PRISONS: TECHNOLOGIES AND RATIONALITIES OF NEOLIBERAL PENALITY.30

a. Rationalities of Neoliberal Penality.31 b. Technologies of Neoliberal Governmentality..34

VI. THE FOUR PILLARS OF THE EMERGING NEOLIBERAL PENALITY.36 VII. CONCLUSION...39

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THE EMERGING NEOLIBERAL PENALITY: RETHINKING FOUCAULDIAN PUNISHMENT IN A

PROFIT-DRIVEN CARCERAL SYSTEM

Daddy was a bank robber, but he never hurt nobody. He just loved to live that way, and he loved to take your money.

- Bankrobber by The Clash, 1980

I. INTRODUCTION

The following illustrations are intended to personalize three major concepts I will be

working with throughout this paper: punishment for profit, mass incarceration, and Foucauldian

governmentality.

a. Illustration 1: Privatization (Punishment for Profit)

During the Autumn of 2006, in northern Pennsylvania, 14-year-old Hillary Transue

decided to build a hoax webpage in her school principals name in order to lampoon his

strictness. She was charged with harassment, and in January 2007, she was brought before a

juvenile court to answer for her behavior.1 As a stellar student with no previous record of

discipline, Hillary was convinced that the worst punishment she could receive would be a stern

lecture.2 Instead, less than a minute into her hearing, she was sentenced to three months at

* Senior Researcher & Lecturer at the Universitt Halle-Wittenberg School of Law, Halle, Germany; Affiliate Legal Consultant at Destination Justice, Phnom Penh, Cambodia. 1 Ed Pilkington, Jailed for a Myspace Parody, The Student Who Exposed Americas Cash for Kids Scandal, The Guardian (March 7, 2009), available at http://www.guardian.co.uk/world/2009/mar/07/juvenille-judges-cash-detention-centre, last accessed August 1, 2013. 2 Ian Urbina & Sean D. Hamill, Judges Plead Guilty in Scheme to Jail Youths for Profit, New York Times (February 12, 2009), available at http://www.nytimes.com/2009/02/13/us/13judge.html?pagewanted=all&_r=0, last accessed August 1, 2013.

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Pennsylvania Child Care (PACC)a for-profit juvenile detention center.3 (She was never

informed of her right to legal representation.4)

In February 2009, the judge involved in Hillarys case pled guilty to having accepted

$2,600,0005 from Bob Powell, co-owner and builder of PACC, in return for a placement

guarantee agreement that would ensure that PACC would receive at least $1,000,000 per year in

public funds.6 As a result of the agreement, the number of children receiving sentences in the

judges courtroom increased from 4.5% to 26%. The judge used the kickbacks to purchase

condominiums in Florida near the marina where Powell parked his yacht.7 Powell calls the boat

Reel Justice and remains uncharged.8

b. Illustration 2: The Drug War (Mass Incarceration)

Early one morning in February 2005, near Farmington, Missouri, James Taylor (a 46-

year-old African American) was pulled over in his car after an officer checked his license-plate

number and mistakenly found that it belonged to a van.9 The officer searched Jamess car and

found an aluminum pipe in the fabric lining of a waste-receptacle which contained in its residue

an unweighable quantity of crack cocaine.10 If the same amount of cocaine had been found in

powder form, James would have been sentenced to community service.11 Instead, he received a

15-year prison sentence,12 and when Congress passed a bill reducing the federal sentencing ratio

for crack-versus-powder cocaine from 100-to-1 to 18-to-1 in 2010, Missouri (influenced by a

strong private prison lobby13) opted to keep its state sentencing requirements at a ratio of 75-to- 3 Pilkington, supra note 1. 4 Associated Press, Pa. Judges Accused of Jailing Kids for Cash, ABC News (February 11, 2009), available at http://www.nbcnews.com/id/29142654/#.UefU8mQY3GA, last accessed August 1, 2013. 5 Because this was a plea, the actual amount the judge accepted was likely much greater. See generally U.S. Fed. R. Crim. Pro. 6 See Pilkington, supra note 1. 7 Id. 8 Id. 9 See State v. Taylor, ED 87634 (Mo. Ct. App. Feb. 13, 2007). 10 Id. 11 Denise Lavoie & Bill Draper, Some States Havent Changed Coke-Crack Disparity, Boston.com (September 1, 2010), available at http://www.boston.com/news/nation/articles/2010/09/01/some_states_havent_changed_coke_ crack_disparity/?page=1, last accessed August 1, 2013. 12 Id. 13 The biggest lobbying spenders are the American Correctional Association (ACA) and the Corrections Corporation of America (CCA). Both groups have spent massive sums of money in states like Missouri to ensure that mandatory minimum sentencing laws stay draconically high. See Donna Selman & Paul Leighton, Punishment for Sale: Private

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1.14 The mandatory minimum sentence for Taylors unweighable quantity of crack cocaine

was (and remains) 10 years at hard labor.15

c. Illustration 3: Biopolitical Governmentality

During a 1989 televised speech concerning the drug problem in the United States,

President George H. W. Bush produced a propa bag of crack cocaine that had been purchased

at Lafayette Park, directly across the street from the White House. It could have just as easily

been heroin or PCP, he said solemnly (and without proof).16 Following the speech, media

coverage of drug related issues increased and public concern about drug usage in the U.S.

reached unprecedented levels.17 Congress and state legislators reacted with ever-increasing

rounds of mandatory minimum sentence laws.18 And Keith Jacksonan 18-year-old African

American high school student in good standing with no criminal recordbecame known as the

kid who sold drugs to the president.19

The Washington Post later reported that obtaining the crack cocaine for President Bushs

speech was no easy feat.20 In fact, several Drug Enforcement Agency (DEA) officials had to

lure Keith into what would become the first-ever undercover crack buy next to the White

House.21 When the DEA first contacted Keith to buy the crack, Keith had no idea where the

White House even was.22 Nevertheless, he was sentenced to a mandatory minimum of 10 years.

The presiding judge at the time said that he regretted having to impose such a sentence (which

would cost the public roughly $175,000.00 in 1989 US dollars) and said that he hoped President

Bush would issue a pardon for Keith (he didnt).23 Prisons, Big Business, and the Incarceration Binge (2010), for a full accountin particular Chapters 2 & 3. Information on the ACA is also available at www.aca.org. 14 See V.A.M.S. 195.202; V.A.M.S. 558.011. 15 See Id. Jamess sentence was probably enhanced due to a previous felony conviction under V.A.M.S. 558.019. 16 Michael Isikoff, Drug Buy Set Up for Bush Speech, Washington Post (September 22, 1989), available at http://www.washingtonpost.com/wp-srv/local/longterm/tours/scandal/bushdrug.htm, last accessed August 1, 2013. 17 Donna Selman & Paul Leighton, Punishment for Sale: Private Prisons, Big Business, and the Incarceration Binge, 36 (2010), [hereinafter Punishment]; see also BUREAU OF JUSTICE STATISTICS REPORT (1992). 18 Id. 19 Id. 20 See Isikoff, supra note 12. 21 Id. 22 The DEAs special agent in charge of D.C. admitted in court that, We had to manipulate him to get him down there, and that [i]t wasn't easy. Punishment at 36; see also Isikoff, supra note 12. 23 Punishment at 37.

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Later that same year, while addressing a group of U.S. Attorneys, Bush made clear that

socioeconomic explanations were, to him, excuses separate from the true causes of crime: We

must raise our voices to correct an insidious tendencythe tendency to blame crime on society

rather than on the criminalI, like most Americans, believe that we can start building a safer

society by first agreeing that society itself doesnt cause the crimecriminals cause the crime.24

Illustrations like these are not hard to find.25 Sociologists and legal theorists alike have

explored moral, legal, and social problems associated with prison privatization in the U.S.,26 but

the industry continues to grow.27 Indeed, in recent years, public outrage over prison privatization

has somewhat subsided, giving way to a complacent acceptance that perhaps punishment too is

an appropriate sphere for market forces.28 This paper asks two primary questions: How did the

market for punishment in the U.S. gain legitimacy and how does it continue to do so? And, how

does U.S. Neoliberalism shape the role of discipline and the power to punish in American

society? In this paper, I will argue that prison privatization embodies a next step in

Foucauldian governmentality as applied to neoliberal societies, through both its normalizing role

(though I will argue that the normalizing goal has shifted toward sustaining a permanent

incarcerated (or post-incarcerated) underclass) and through its instrumental role (further

removing the exercise of punishing power from the sovereign).

A brief background: The biopolitical29 theatrics of Bush pumped fuel into a massive

growth in incarceration rates that began in the early 1980s (I will call this movement

hyperincarceration).30 Hyperincarceration policies emerged as a conservative response to the

24 Loic Wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity, 9 (2009), [hereinafter Wacquant] quoting George H. W. Bush, Remarks at a Briefing on Law Enforcement for United States Attorneys. Emphasis added. 25 See Punishment, preface and Ch. 1; see also Michael Hallett, Private Prisons in America: A Critical Race Perspective, Ch. 1 and 6-8 (2006). 26 See e.g. Garland, infra note 221; Wacquant, infra note 24. 27 Approximately 10% of U.S. prisons are currently private. Arizona is currently considering selling its entire penal system to private interests in an effort to offset shortcomings in the state budget. See Bernard E. Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order, 237 (2011). 28 See e.g., The Sentencing Project, Prison Privatization and the Use of Incarceration (2004), available at http://www.sentencingproject.org/doc/publications/inc_prisonprivatization.pdf. 29 The word biopolitics has a few definitions, but I am using it in the Foucaultian sense, referring to the style of government that regulates populations through biopower. Biopolitics is a new technology of power...[that] exists at a different level, on a different scale, and has a different bearing area, and makes use of very different instruments. Michel Foucault, Society Must Be Defended: Lectures at the Collge de France, 1975-1976, 241 (1997). More than a disciplinary mechanism, Foucault's biopolitics acts as a control apparatus exerted over a population as a whole or, as Foucault put it, a global mass. Id. at 242. 30 See generally Punishment.

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Civil Rights Movement of the 1960s31 and continued with great strength through the Clinton

administration into the final years of the W. Bush administration.32 (There is some evidence that

incarceration rates may have reached a plateauat least for now.33) Hyperincarceration led to

overcrowding in both state and federal prisons thatcoupled with a neoliberal redefinition of the

social and the economic technologies of government as antagonistic toward one another

justified the privatization of punishment (at least under neoliberal redefinitions of what

constitutes justification). In this paper, I will use prison privatization to illustrate a broader shift

in the sovereign exercise of suprapolitical biopower34 (in particular over the economically 31 See Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2nd ed. 2012) (The rhetoric of law and order was first mobilized in the late 1950s as Southern governors and law enforcement officials attempted to generate and mobilize white opposition to the Civil Rights Movement. [During efforts to desegregate in the 1960s,] Southern governors and law enforcement officials often characterized [desegregation] tactics as criminal and argued that the Civil Rights Movement was indicative of a breakdown in law and order. Support of civil rights legislation was derided by Southern conservatives as merely rewarding lawbreakers[They argued that] Martin Luther King Jr.s philosophy was the leading cause of crime. Civil rights protests were often depicted as criminal rather than political in nature.). 32 See id. at Ch. 1.

33 Image retrieved from http://kottke.org/13/01/us-prison-population-on-the-decline, last accessed August 1, 2013. 34 Biopower is the practice of modern nation states and their regulation of their subjects through an explosion of numerous and diverse techniques for achieving the subjugations of bodies and the control of populations. Michel Foucault, The History of Sexuality, Volume I, 140 (1976). By this I mean a number of phenomena that seem to me to be quite significant, namely, the set of mechanisms through which the basic biological features of the human species became the object of a political strategy, of a general strategy of power, or, in other words, how, starting

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disadvantaged)a shift Althusserian Marxists previously considered impossible. 35 Citizens

deemed unable to make appropriate use of their freedom through neoliberal self-government

(i.e. those (1) unable to self-govern, and (2) unable to be re-attached to the status quo) are

converted through the prison-industrial complex into instruments through which private gain

may be extracted.

Following Wacquant, I reject the conspiratorial view of history that would attribute the

rise of punishment-for-profit to a deliberate plan pursued by omniscient and omnipotent rulers,

whether political or private.36 Rather, following Foucault, I wish to treat punitive power as a

fertilizing force that remakes the very landscape it traverses.37 Although I will point out

individual actors and events in the vast network of stakes that converge to shape the status quo of

criminality, it is not my intention to point to any individual, state, or corporate actor as the sole

shaper.

d. Argument Summary

There is a new neoliberal penality emerging in the United States with four primary

characteristics (I will call these pillars): (1) the death of rehabilitation, (2) the de-

individualization of the criminal, (3) the emergence of a market for deviance, and (4) the

managerialistic approach. The prison-industrial complex in the United States illustrates these

pillars, but the pillars are not limited to the prison-industrial complex.

Foucaults concept of the prison as an institution primarily of individual normalization

presupposes rehabilitation as the primary goal of the institution. This is no longer the case.38

Rather, the penal culture has shifted from one that views crime and imprisonment as a

resolvable social deviance to one that views crime and imprisonment as inevitablea natural (if from the 18th century, modern Western societies took on board the fundamental biological fact that human beings are a species. This is what I have called biopower. Michel Foucault, Security, Territory, Population, 1 (2007). 35 See Thomas Lemke, Foucault, Governmentality, and Critique, 14 Rethinking Marxism: A Journal of Economics, Culture, and Society 49. Althusserian Marxists believed state control of the penal apparatus was an essential component of Capitalist structure. 36 Punishment at 9. 37 Michel Foucault, Power/Knowledge: Selected Interviews and Other Writings, 1972-1977, 97 (1980). Foucault elaborates: What makes power hold good is that it traverses and produces things, it induces pleasure, forms knowledge, produces discourse. It needs to be considered as a productive network which runs through the whole social body, much more than as a negative instance whose function is repression. Id. at 119. 38 Not in the U.S., as this paper illustrates, and not in the UK or France. See generally Garland, infra note 221; Wacquant.

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unfortunate) byproduct of modern (and especially urban) societies.39 It views deviation as a

result of nature and volitionnot the result of social conditions. As such, the service of

imprisonment is less distinguishable from other government services, and contracting the service

of imprisonment seems as morally justifiable as contracting services like building roads or

collecting garbage. We will always have what society calls criminals, and the assumption is

that they must be imprisoned (for, as Foucault observes, it is no longer palatable to take

vengeance upon them or to overtly display biopower over them). In the American neoliberal

world of rational economic actors, deviance is a cost-benefit decision like any other. The social

and the psychological are shirkeda murder is indistinguishable from a parking violation,

except in terms of cost and benefit. Normalization focuses not on the (internal) subjugation of the

individual, but the (external) control of the array of choices (there are four sets of sentencing

laws in the U.S. that back this claim40). Moreover, the prisoners body is no longer an instrument

through which the soul may be reached, but rather, it is both an object upon which to perform

carceral services and an instrument through which profit may be extracted.

This is a continuation of the technologies of governmentality Foucault observed in

Discipline and Punish, but prison privatization embodies a new stage upheld by the four pillars

of the emerging neoliberal penality.

Part II summarizes the applicable points in Foucaults Discipline and Punishthe role of

the prison as a normalizing institution and its role as a technology of governmentality. Part III

draws on the work of Nikolas Rose, Thomas Lemke, and others to unpack how governmentality

functions in neoliberal societies, particularly in the United States. Part IV describes the history

and present state of the prison-industrial complex in the United States. Part V draws primarily on

the work of David Garland, Jonathan Simon, and Loic Wacquant to illustrate the connections

between neoliberal governmentality and criminal justice policy in the United States. Part VI

combines the arguments presented in the preceding Parts to present the four pillars of the

emerging neoliberal penality. Part VII concludes.

39 See generally id. 40 (1) Determinant Sentencing, (2) Truth in Sentencing, (3) Mandatory Minimums, and (4) Three Strikes and Youre Out. See Part IV of this paper for an explanation of each type of policy.

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II. DISCIPLINE AND PUNISH: PRISONS AS INSTITUTIONS OF NORMALIZATION

This paper will present three primary eras of punishment with respect to the object of

punishment: The era of the body, the era of the soul, and the era of the dollar. In his work on

Discipline, Foucault identified these first two eras. This section will explore the shift from the

era of the body to the era of the soul, and its consequences for the practice of punishment and for

society at large.

a. The Disappearance of the Spectacle and the Emergence of the Era of the Soul

For Foucault, the human body is the ultimate material seized and shaped by all political,

economic, and penal institutions.41 He observes an important trend in the progression of

punishment throughout 18th and 19th century Francenamely, the decreasing visibility of the

criminal, or the body of the condemned.42

In 18th century France, punishment took place publicly and gruesomely.43 The infliction

of pain upon the body was crucialsimply ending the life of the offender was not enough. Pain

was the primary currency in which the offender could remunerate for the offense.44 By the

1870s, however, punishment looked different. It became more humane. The objectification of the

body as a surface for punishment disappeared.45 Rather, the object shifted to the offenders

soul.46 For Foucault, the soul is produced permanently around, on, and within the body by the

functioning of a power that is exercised on those punished.47 It is born of methods of

punishment, supervision and constraint.48

In the era of the soul, the effectiveness of punishment results from its inevitability, not

from its visible intensity.49 Violence becomes an unfortunate byproduct of punishment. The

sense of tragedy when a subject commits an offense emerges not from the violence of

41 See Friedrich Nietzsche, On The Genealogy of Morals (1887). 42 Michel Foucault, Discipline and Punish: The Birth of the Prison, 27 (1975), [hereinafter Discipline] 43 See Foucaults descriptions in the introductory chapter of Discipline. 44 Id. 45 Id. 46 Id. 47 Id. at 36 48 Id. 49 Id. at 9.

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punishment itself but from the fact that the offender has acted to bring violence upon him or

herself. 50 Moreover, the public portion of punishment shifts from the scaffold to the trialthe

mechanics of justice. The public wishes to see the gears of punishment but not the punishment

itself; and the gears, if functioning correctly, will work as machine producing an inevitable

result. The judge replaces the executioner, and the sentence is a product of nature rather than an

act of vengeance for an offence against the sovereign.51

The body becomes an instrumenta gateway to the soul.52 Liberty of the body is

botha right anda propertya right of the subject (imposing a duty on the sovereign to

ensure its existence) and an object (property) belonging to the subject. If the body is imprisoned

or if labor is forcefully extracted from it, the purpose is to deprive the individual of the property-

right of liberty.53 (Nikolas Rose further clarifies this concept in the next section.) Thus,

punishment is no longer an art of unbearable sensations punishment, but rather an economy

of suspended rights.54

b. Foucauldian Biopower and Power-Knowledge

For Foucault, the array of considerations available to the judge changes in the era of the

soul.55 Judgment is passed not only on act of crime as defined by law, but also on passions,

instincts, anomalies, infirmities, maladjustments, effects of environment or heredity,

aggressivity, perversions, drives, and desires.56 Thus, [b]y solemnly inscribing offences in the

field of objects susceptible to scientific knowledge, they provide the mechanisms of legal 50 Justice no longer takes public responsibility for the violence that is bound up with its practice. If it too strikes, if it too kills, it is not as a glorification of its strength, but as an element of itself that it is obliged to tolerate, that it finds difficult to account for. Id. at 36. 51 Beyond this distribution of roles operates a theoretical disavowal: do not imagine that the sentences thatjudges pass are activated by a desire to punish; they are intended to correct, reclaim, cure; a technique of improvement represses, in the penalty, the strict expiation of evil-doing, and relieves the magistrates of the demeaning task of punishing. In modern justice and on the part of those who dispense it there is a shame in punishing, which does not always preclude zeal. Id at 9. 52 Id. at 11. 53 Id. 54 Id. 55 Id. at 81. We must consider three different phenomena if we are to understand the sophistication of Foucault's judiciary matrix. First, there is law itself (which may take a number of different forms); second, there is the network of power relations (which, at different times, may be either juridical or disciplinary, for example); and finally, there is the code by which power presents itself (which for Foucault is consistently juridical). See Victor Tadros, Between Governance and Discipline: The Law and Foucault, 18 Oxford Legal Studies 1, 75-103 (1998). 56 Id. at 17.

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punishment with a justifiable hold not only on offences, but on individuals; not only on what

they do, but also on what they are, will be, may be.57

In this way, a whole [new] set of assessing, diagnostic, prognostic, normative judgments

concerning the criminal enters the modality of penal judgment itself.58 Evaluations on sanity,

for example, can alter the intensity of a punishment. The very act of looking to the mind of the

accused, rather than (or in addition to) a law, implies judgments of normality, attributions of

causality, assessments of possible changes, anticipations as to the offender's future.59 The

sentence moves beyond a simple legal decision to include sets of normative judgments upon the

individual. The power of judicial decision-making reaches far beyond the sanction; the sanction

carries with it an assessment of normality and a prescription for possible normalization.60

Judges are now judging something other than crimesand the power of judging has

been transferred in part, to other authorities thanjudges. Moreover, criminal

justicejustifies itself only [through] perpetual reference to something other than itselfthat

is, through referencing experts with respect to the mind of the accused.61

Foucault situates technologies of punishment within a certain political economy of the

body.62 The body can only be utilized as labor power if it is both a productive body and a

subjected body.63 Foucault differs from Marxist penal theorists in insisting that power be

conceived not as a property, but as a strategy. For Foucault, power is not a privilege one can

possess but a network of relations, constantly in tension. It is a perpetual battle rather than a

contract.64

The political economy of the body gives rise to the 19th century concern with knowing

the criminal.65 Because the body is now an instrument for transforming the soul (rather than a

surface upon which to inflict pain), a change is needed in penal technology. Punishment is

corrective, not vengeful. To best correct, a whole range of experts emerge with the goal of 57 Id. at 18. 58 Id. at 19. 59 Id. at 20. 60 Id. at 21. 61 Id. at 22. 62 Id. at 24. 63 Id. at 25-26. 64 Id. at 27. 65 This concern with knowing the individual reflects (at least partially) a Hegelian conceptthe recognition of each individual of themselves in the other. See George Wilhelm Friedrich Hegel, The Phenomenology of Spirit (1807).

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identifying the best method of correcting the deviant individual. They must bring about

knowledge to identify abnormalities, aiding in the process of normalization (rehabilitation).66

Hence, Foucauldian power-knowledge:

Power produces knowledgepower and knowledge directly imply one anotherthere is no power relation without the correlative constitution of a field of knowledge, nor any knowledge that does not presuppose and constitute at the same time power relations.67

Here, it becomes clear that, although Foucault insists that power is not a commodity in

the Marxist sense, knowledge is still a commodity; and because knowledge directly impl[ies]

power, power too can be (at least partially) commoditized. Even with his interrelation

explanation, Foucault does not banish the idea that power can be a strategy primarily exercised

by a ruling class upon the people.68 To survive the solidarity of the people, disciplinary

punishment needs to become a regular function, coextensive with societynot punishing less,

but punishing better.69 A new morality of punishment and judgment is needed to embrace the

development of production, the increase of wealth, and the higher juridical and moral value

based on property relations.70 Essentially, the right to punish [must shift] from the vengeance of

the sovereign to the defense of society.71

c. Technologies of Justification: Illegalities of Property, Illegalities of Rights, and the New Gentle Punishment

Echoing the Marxist-Pashukanian reconstructive theory of criminal law, Foucault

observes that illegalities of property are separated out from illegalities of rights.72 Illegalities of 66 David Garland, Sociological Perspectives on Punishment, 14 Crime and Justice 115, 135 (1991). 67 Discipline at 27. 68 See Karl Marx, Critique of Hegels Philosophy in General (1844). Although Foucault refused to be classified as a Marxist on the grounds that power was not a commodity exercised by a few that posed it, but rather, a complex interrelationship of technologies of domination and submission, I think there is a clear parallel to Marxist though here, casting the proletariat as objects of punishment and the state (or sovereign administering the punishment) as the bourgeoisie. 69 Discipline at 67, 82. 70 Id. at 77. 71 Id. at 90, 93. 72 See Evgeny Pashukanis, The General Theory of Law and Marxism, Ch. 7 (1924), from Piers Beirne & Robert Sharlet (Eds.), Selected Writings on Marxism and Law, 32-131 (1980); also available at http://www.marxists.org/archive/pashukanis/1924/law/.

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rights were exclusively reserved to the bourgeoisie (those pertaining to the immense sector of

economic circulation), and illegalities of property were those most accessible to the lower classes

(i.e. violent transfer of ownership).73 The criminal law itself emerges as a dynamic of power, a

technology used largely by the bourgeoisie as an instrument of suppression of insurgence against

property rights, which in turn inspires submission in the lower classes. This distribution of

illegalities expresses itself through courts or legal circuits: property violations express remedies

through punishment and rights violations (reserved to the ruling classes) express remedies

through transactions.74 As this new face of illegality and criminal law emerged, so did a general

consensus accepting the power to punish, andmore significantlyaccepting the constant

policing of illegalities concerning property.75

The technology of illegality called for a new, gentle form of punishment. Punishments

concerning the illegality of property must be focused on the offender. They must be seen as

being in an individuals best interest76as a lesson, [a] discourse, [a] decipherable sign, [a]

representation of public moralityEach element of its ritual must speak, repeat the crime, recall

the law, show the need for punishment, and justify its degree.77

But what form shall this gentle punishment take? The prison triumphed over all reasons

against imprisonment because it is ideal for transforming the body of the accused into an

instrument through which the true object of Foucauldian punishmentthe soulcan be

reached. 78 Because the object of punishment is the individual soul, individualization of

punishment is essential to its effective practice.79 Hence, the prison nourishes an ever-expanding

domain of power-knowledge concerning the individual (this power-knowledge, in turn, affects

nearly every aspect of life in the U.S.80).81 The prison (and discipline generally) is an instrument

used to correct an individuals mental state; it provides the ideal setting for such work to take

place: 73 Discipline at 87. 74 Id. 75 Id. at 88. 76 Id. at 109. 77 Id. at 110-11. 78 Id. at 124-26. 79 Id. 80 See David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (2001); see also Jonathan Simon, Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (2003). 81 Discipline at 126-27.

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Work on the prisoner's soul must be carried out as often as possible. The prison, though an administrative apparatus, will at the same time be a machine for altering mindsThe most important thing[in prison is] that this control and transformation of behavior [are] accompaniedboth as a condition and as a consequenceby the development of a knowledge of the individuals.82

d. Normalization Through Instruments of Disciplinary Punishment: Hierarchical Observation, Normalizing Judgment, and the Examination

For Foucault, discipline is a process of constant coercion. It dissociates power from the

body. If economic exploitation separates the force and the product of labor, let us say that

disciplinary coercion establishes in the body the constricting link between an increased aptitude

and an increased domination.83 Its chief function is to train.84 It is a technology of power that

creates individuals through three simple instruments of disciplinary power: (1) Hierarchical

Observation;85 (2) Normalizing Judgment;86 and (3) the Examination.87

(1) Hierarchical Observation. This refers to technologies of coercion by means of

observationhierarchical structures that exercise power by means of general visibility.

Foucault says this instrument of disciplinary power is found in urban development, in the

construction of working-class housing estates, hospitals, asylums, prisons, schools: the spatial

nesting of hierarchized surveillance.88

(2) Normalizing Judgment. The punishment of discipline stretches far beyond the

boundaries of criminal law.89 Judgment is passed on anyonefrom students to soldierswho do

not achieve or perform to a predetermined level. Judgment is based on observable deficiencies

(or deviancies) and punishment is viewed as a natural consequence of the deficiencies.90

Disciplinary punishmenthas the function of reducing gaps. The nature of punishment to

82 Discipline at 125-26. 83 Id. at 138. 84 Id. at 167. 85 Id. at 170-77. 86 Id. at 177-84. 87 Id. at 184-92. 88 Id. at 170-72. 89 Id. at 178. 90 Id. at 179.

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Foucault is essentially corrective, or rehabilitative (in the sense that rehabilitation is a return to

a norm).91

Disciplinary punishment is not exclusively exercised as a system of rebuke. It is part of a

double system of gratification-punishment.92 The lowest, most shamed, ranks exis[t] only

to disappearto work their way up the hierarchy.93 In this way, discipline is used to

differentiate individuals from one another by quantitatively measuring the nature of

individuals and placing them in a hierarchy of value. It defines what is abnormal, and

introduces a level of conformity that must be achieved.94

In short, [discipline] normalizes.95 The Normal is perpetuated through institutions.

Discipline homogenizes through conformity on one had, and on the other, it individualizes

through ranks and assessments. Through measurement, the norm introducesall the shading of

individual differences in a homogenized setting, seeking to further its own hegemony.96

(3) The Examination. According to Foucault, the examinationcombines the techniques

of an observing hierarchy and those of a normalizing judgment.97 Examinations create three

linkages between the formation of knowledge and the exercise of power: (1) A performance on

an examination visibly provides justification for various forms of discipline (e.g., You failed

your spelling test. Therefore, you must sit in the corner with a dunce cap on your head.).98 (2)

Through individual documentation, the Examination fixes norms, which allow for a continuous

analysis of the individual and a comparative system in which to place the individual.99 (3)

Because the examinationthrough its documentary techniquesmakes each individual a

case, it marks the point at which individualization is incorporated into normalization.100

Through these instruments of discipline, the productive nature of power becomes clear. It

is not a negative force. It produces. It creates the individual.101

91 Id. 92 Id. 93 Id. at 182. 94 Id. 95 Id. at 183. 96 Id. at 184. 97 Id. 98 Id. at 187-89. 99 Id. at 189-91. 100 Id. at 191-93. 101 Id. at 194.

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In sum, the crux of discipline (and ultimately the exercise of biopower) is power-

knowledge. Upheld by the psychiatry and the judicial apparatus, power-knowledge

normalized the power of normalization.102 The boundaries between confinement, judicial

punishment, and institutions of discipline are increasingly blurred. Technologies of discipline

and exercise of biopower spill into all disciplinary mechanisms that function throughout

society.103 Irregular behavior is no longer an attack on the common interest, but rather, a

departure from the norm.104 Foucault cites Bentham's Panopticon105 as the physical manifestation

of the three primary instruments of disciplinary power (Hierarchy, Normalization, and

Examination). Panopticism replaces the collective effect[s] of crowds with collection[s] of

separated individualities.106 It ensures that there are no outlaws (separate from the system of

legality); there are only subjects who engage in subtle illegalities, on the basis of which they

become delinquents.107 The power to punish seems natural and legitimate, so long as it is

exercised in a degree that masks its violence; the prison differs from society at large only in

terms of degreeboth are subject to perpetual punishment,108 and judges of normality are present

everywhere, not just in politico-juridical forums.109

102 Id. at 296. Parenthesis removed; emphasis added. 103 Id. at 297-98. 104 Id. at 298-300.

105 For a full description of the Panopticon, see Jeremy Bentham, Panopticon, from Miran Bozovic (Ed.), The Panopticon Writings, 29-95 (1995). Image retrieved from http://upload.wikimedia.org/wikipedia/commons/1/11/Panopticon.jpg, last accessed August 1, 2013. 106 Discipline at 201. 107 Id. at 300-01. 108 Id. at 301-03. 109 Id. at 304.

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III. GOVERNMENTALITY IN NEOLIBERAL SOCIETIES

To understand what is thought, said, and done in a society, we must identify the tacit

premises and assumptions that make these things thinkable, sayable, and doable. 110

Governmentality seeks to identify how (not why) these premises and assumptions shape the

interrelationship of governing and being governed. 111 Following Miller and Rose, I will

distinguish between rationalities (or programs) of governmentality and technologies of

governmentality. The former refers to the intrinsic links between representing and knowing a

phenomenona style or styles of thinking. The latter refers to ways of acting upon a

phenomenon so as to transform it.112

The emergence of what Foucault defined as disciplinary practices and institutions of

confinement113 must be reinterpreted in light of the emergence of a capitalist system of

production whose political economy conceives of the human body as a resource to be exploited

in the process of production.114 This is because the range of acceptable options for punishment is

limited in such societies to those capable of converting the body into a source of production.

Neoliberal governmentality requires that the historical emergence, consolidation, and

ongoing transformations of modern penal practices reflect the capitalistic need to carve a docile,

laborious workforce out of the undisciplined dangerous classes (which are constantly

generated by capital itself as a byproduct of its creative destruction). 115 Institutions of

disciplinary punishment should contribute to the production of capital, either through

reproduction of a disciplined labor force,116 or through other means.

110 Nikolas Rose and Peter Miller, Governing the Present: Administering Economic, Social and Personal Life, 3 (2008). 111 Id. at 6. 112 Id. at 15-16. 113 See Petrus Spierenburg, The Spectacle of Suffering: Executions and the Evolution of Repression (1984). 114 In Punishment and Social Structure (5th ed. 2009), Georg Rusche and Otto Kirchheimer argued that a sociological understanding of the historical and contemporary trajectories of penal systems and of punitive practices in general should be informed by a structural analysis of the connections between penal technologies and the transformations of the economyin particular, the transition of modern societies from a pre-capitalist to a capitalist mode of production. For additional neo-Marxist critiques of neoliberal penality, see Dario Melossi & Massimo Pavarini, The Prison and the Factory: Origins of the Penitentiary System (1981); Richard Quinney, Critique of the Legal Order: Crime Control in Capitalist Society (1977); David Greenberg, Crime and Capitalism: Readings in Marxist Criminology (1981); Tony Platt & Paul Takagi, Crime and Social Justice (1981). See also Pashukanis, supra note 79. 115 See Joseph Schumpeter, Capitalism, Socialism, and Democracy (1942). 116 Alessandro De Giorgi, Rethinking the Political Economy of Punishment, 148-49 (2006).

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a. Governmentality and Neoliberal Citizenship: Programs and Technologies of the New Freedom

During the closing decades of the 20th century, consistent with the trends set out in

Discipline, a new individualization emerged in the U.S.one that brought new ways of thinking

about the objects, mechanisms, and boundaries of government. The relationship of the state to

the people embodied a new set of valuesone that emphasized small government while

promoting a very specific brand of individual freedom.117 Now, the ideal role of the state is to

maintain the infrastructure of law and order, while the role of the people is to take responsibility

both for the self and for the nation.118

The New Deal-era social state in the U.S. was harshly criticized both by the Marxist left

and the neoliberal right.119 The left noted that the welfare state was largely paid for by the poor

and largely benefited the middle class, while the right viewed social welfare as a tax-raising

policy parasite with an unquenchable thirst for hard-earned tax dollars. Both sides agreed, the

belief in a social state guaranteeing steady and incremental progress for all citizens must be

rejected.120 This new movement in governmentalitywhich Nikolas Rose terms advanced

liberalismshares many of the premises on which neoliberalism is built. However, it is not

strict neoliberalism, as it presents a new diagram of the relation between government, expertise,

and subjectivity; it is neither a return to the liberalism of the 19th century, nor a return to

government by laissez faire, in which the market must be freed from its social shackles.121

What Rose calls advanced liberalism (and what I will continue to call neoliberalism for

uniformitys sake) is a form of liberalism that reconceptualizes social behavior along economic

lines. Human choice and human action are products of cost-benefit analysisinvestments made

by individual actors in light of environmental contingencies.122

Social roles are reconceptualized. The idea of the social state gives way to the idea of

the enabling state. Economic policy and social justice are now seen as antagonistic to one

another. Even though entire communities sink or swim based on collective efforts to produce

capital, the economic fates of individual citizens within national territories are uncoupled from 117 Nikolas Rose, Powers of Freedom: Reframing Political Thought, 138 (1999), [hereinafter Rose]. 118 Id. at 140. 119 Id. at 141. 120 Id. 121 Id. 122 Id. at 142.

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one another.123 And even the opposing neo-social arguments that emerge echo the proposed

solutions of the neoliberal ones: [The states] political responsibility is to provide [the citizen]

with training, combat discrimination, help with child care for lone parents, [and to protect each

individuals] rights as a worker. But your political responsibility as a citizen is to improve your

own lot through selling your labor on the market.124

Freedom itself is redefined. It is no longer conceived in terms of freedom from want or

freedom to choose how to live.125 Rather, freedom is defined as a capacity. Specifically, it is the

capacity for self-realization, which can only be achieved through individual action.126 This

resolves the great dissonance between the patriotic duty of a citizen to ensure the wellbeing of

fellow citizens and the economic self-interest of the citizen (the desire and the drive to

accumulate). Now, a policy that imposes a hierarchy of values upon freedom is one that

enhances national economic health, thereby generating greater (economic) freedom for the

individual.

The new freedom gives way to new technologies of governmentality. Contracts, budgets,

performance-related pay, competition, and quasi-markets enter arenas previously governed by

bureaucratic and social logistics.127 In the case of private prisons, both the state and the

correctional facilities act as costumers. The state purchases a certain number of places (usually

on a per diem basis), which are guaranteed by the correctional facility. These places include

more than cellsthey include an entire custodial package.128

Power-knowledge is required to justify these new technologies of neoliberal

governmentality. It is produced by knowledge-workers, no longer the simple managers of

disciplinary individualization. They provide the state with information, tutor the state on

techniques of self-government, and aid the state in processes of evaluationin short, they

audit.129 They identify delinquentsindividuals who are unable to self-govern, then reattach

123 Id. at 144. 124 Id. at 145. 125 I am alluding to the New Deal era essential freedoms articulated by President Franklin D. Roosevelt during his 1941 State of the Union address: freedom of speech, freedom of worship, freedom from want, freedom from fear. 126 Rose at 145. 127 Id. at 146. 128 These arguments are fully developed in Part IV. 129 Ironically, the freedom of the neoliberal freedom expert too is redefined by the technology and rationality of expertise. Following Michael Power, Rose identifies the institution of Audit as a control technology of governmentality (a rationality)a central mechanism for the distancing of arbitrary exercise of power. It is a

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them to society through training and welfare-to-work; or, they remove them from society

through incarceration.130

Because the citizen is required to use freedom to better his or her lot through economic

contribution, the active citizen becomes one that is ceaselessly engaged in betterment of the

self.131 Moreover, by the same token that each individual is reconceptualized as a potential

avenue of economic success, unemployment is reconceptualized as a problem to be governed.132

As Loic Wacquant observes, this reconceptualization provides a foothold for a criminal justice

regime that punishes poverty.133

b. Neoliberal Rationalities and the Free Market: Generalizing the Scope of the Economic

American neoliberalism (in particular the Chicago School reaction against the

interventionist state134) is particularly skeptical about the capacities of political authorities to

govern anything. Economic efficiency and morality are intertwined: Because [the welfare state]

cultivates the view that it is the role of the state to provide for the individual, the welfare state

has a morally damaging effect upon citizens, producing a culture of dependency based on

expectations that government will do what in reality only individuals can do.135 The welfare

state depends on bureaucracy, and therefore is subject to constant pressure from bureaucrats to

expand their own empires, whichaccording to Hayek, for examplefuels an expensive and

inefficient extension of the governmental machine.136

To remedy this problem of government, neoliberal governmentality dictates that

markets should replace government planning as regulators of economic and social activity.

Political responsibilities regarding social welfare should, as much as possible, be commoditized

technology of mistrustthe monitor of control, or as Michael Power puts it, the control of control. Id. at 147-55. See also Michael Power, The Audit Society: Rituals of Verification (1997). 130 Id. at 147. 131 Rose at 164-65. 132 Rose at 162. 133 Wocquants Punishing the Poor, supra note 20. This is discussed in greater detail in Part V. 134 For a full explanation of the Chicago Schools interventionist state problem, see Milton Friedman, Capitalism and Freedom (1962). 135 Nikolas Rose and Peter Miller, Governing the Present: Administering Economic, Social and Personal Life, 79 (2008), [hereinafter Rose & Miller] 136 See Friedrich Hayek, The Road to Serfdom (1944).

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and regulated by market principles.137 Economic entrepreneurship is a far better regulator of the

costs and benefits of political social responsibility, and further, any promotion of economic

entrepreneurship expresses the overarching value that each individual should seize responsibility

to better his or her own life.

Neoliberalism reduces the role of the state to providing a legal framework for domestic

life (though the international role of the state is another story).138 Within this framework,

autonomous actorscorporations and individuals alikemust freely take responsibility for their

own destinies.139 The state is increasingly autonomized140standing back and controlling

from a distance. For example, the state does not directly control the actions and calculations of

business or social organizations; it merely controls the framework in which they act.141 It

distances from its actions the arbitrary exercise of power and decreases the visibility of its use of

power (enacting the trends Foucault identified in Discipline), appearing as if the framework

bears little or no responsibility for individual actors within the framework. The language of the

entrepreneurial individual dominates over almost all ethical claims with respect to political

power or mechanisms of government.142 A market facilitating individual entrepreneurialismor

facilitating the ability of each individual to pursue the betterment of his or her position in life

becomes the only moral or ethical arrangement of government.143

Foucault too notes this in his Governmentality lecture: Life time must be synthesized

into labor time, individuals must be subjugated to the production circle, habits must be formed,

and time and space must be organized according to a scheme.144 He suggests that the Chicago

Schools art of government is to consistently expand the economic form to apply to the social

sphere, thus eliding any difference between the economy and the social.145 However, as Rose 137 Rose & Miller at 79. 138 See Id. 139 Id. at 80. 140 This is a term Nikolas Rose uses to describe the hands-off way in which the state and private interests interact; the complex web in which the goals of the state shape and are shaped by private interests, and the ways in which the state interests are increasingly expressed through private ones in neoliberal governmentality. Rose & Miller at 79-85. 141 Id. at 80. 142 Id. at 81. 143 Id. 144 Thomas Lemke, Foucault, Governmentality, and Critique, 14 Rethinking Marxism: A Journal of Economics, Culture, and Society 49, 59-60 (2002); see also Etienne Balibar, Foucault and Marx: The Question of Nominalism, from Timothy Armstrong (Ed.), Michel Foucault: Philosopher, 38-56 (1992). 145 Thomas Lemke, The Birth of BiopoliticsMichel Foucaults Lecture at the Collge de France on Neo-Liberal Governmentality, 30 Economy & Society 190, 197 (2001), [hereinafter Lemke].

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observes, the U.S. model of rational-economic action serves as a principle for justifying and

limiting governmental action, in which context government itself becomes a sort of enterprise

whose task it is to universalize competition and invent market-shaped systems of action for

individuals, groups, and institutions.146

This generalization of the economic form accomplishes two things: First, it functions as

an analytical principle. It can investigate noneconomic arenas in terms of economic categories

(as illustrated by Roses work on the institution of Audit, outlined in footnote 129). Second, it

enables a critical evaluation of governmental practices using market principles. This speaks to

the program or rationality stem of governmentality. It allows government to be assessed, to

show whether its practices are excessive or entail abuse, and to modify them in terms of supply

and demand. The neoliberal government becomes a kind of permanent economic tribunal.147

Thus, neoliberal rationality continually utilizes technologies and rationalities of

governmentality to reshape the relationship between the economic and the social. As Lemke

observes, the real strength of this governmentality consists in the fact that it construes

neoliberalism not just as ideological rhetoric or as a political-economic reality, but as a

political project that creates a social reality that it suggests already exists.148

c. Normalizing the Rules, not the Individuals: Rethinking The Role of Criminality in Neoliberal Societies

The neoliberal construct of rationality marks a break with Foucaults conception of the

criminal.149 Neoliberalism distances itself from all psychological, biological or anthropological

explanations of crime: In the opinion of the neoliberals, a criminal is not a psychological[ly]

deficient person or a biological degenerate, but a person like any other. The criminal is a

rational-economic individual who invests, expects a certain profit, and risks making a loss.150

Moreover, [i]t is the task of the penal system to respond to a supply of crimes, and punishment

is one means of constraining the negative externalities of specific actions.151 146 Id. at 198; see generally Rose & Miller; Discipline. 147 See Lemke, supra note 146, citing Foucaults lecture at the Collge de France, March 21, 1979. 148 Id. at 199 149 Id. at 198-200, citing Pasquale Pasquino, Criminology: The Birth of a Special Knowledge, from Graham Burchell, Colin Gordon & Peter Miller (Eds.), The Foucault Effect: Studies in Governmentality, 235-50 (1991). 150 Lemke at 198-200. 151 Id. at 199.

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American neoliberalism does not treat crime as external to the market model. Instead,

[crime] is one market among others.152 In abiding by neoliberal principles of minimal

government intervention, neoliberal penality should never aspire to completely eliminate crime,

but should try to strike a temporary and forever fragile balance between the positive supply curve

for crime and a negative demand curve for sanctions.153

Thus, as Lemke observes, neoliberal penal policy isaction that impacts on the balance

of profit and loss and seeks to apply leverage to the cost-benefit ratio. It focuses not on the

players, but on the rules of the game, not on the (inner) subjugation of individuals, but on

defining and controlling their (outer) environment.154 Moreover, neoliberal societies value

optimization over normalization. Unlimited conformity is unnecessary. Rather, neoliberal

societies live quite happily with a certain degree of criminality, which isnot a sign of social

dysfunction, but rather [a sign] that society functions optimally, regulating even the distribution

of criminality.155

IV. THE PRISON-INDUSTRIAL COMPLEX IN THE UNITED STATES

As we have seen, the political rhetoric concerning the welfare state changed considerably

in the U.S. during the closing decades of the 20th century. As early the 1970s, during Lyndon

Johnstons presidency, politico-propaganda catchphrases shifted focus from the war on

poverty to the war on crime.156 As an emphasis on personal responsibility and economization

of the social sector increased, the focus on the genesis of criminal behavior decreased. Before

1965, public attitudes on the welfare state and on race, as measured by the annually administered

General Social Survey, varied from year to year independently of one another.157 The association

in the American mind of race with welfare, and of race with crime, emerged at a common

historical moment, increasing from 1966 to 1996.158 The effect of these shifts was to transform

152 Id. 153 Id. 154 Id. at 200 155 Id. citing Foucaults lecture at the Collge de France, March 21, 1979. 156 Punishment at 31. 157 Glenn Loury, Why Are So Many Americans in Prison? Race and the Transformation of Criminal Justice, The Boston Review (July 1, 2007), available at https://bostonreview.net/loury-why-are-so-many-americans-in-prison, last accessed August 1, 2013. 158 Punishment at 31.

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the image of the impoverished, especially poor minorities, from needing social justice to not

deserving rights, financial assistance, and rehabilitation. By emphasizing street crime and

framing that problem as the consequence of bad people making bad choices, the neoliberal right

made it much less likely that members of the public would empathize with and support measures

to assist individuals receiving state welfare.159 When the poor [seem] menacing, they [become]

the underclass.160 Through the law-and-order and tough-on-crime campaigns, society could

be protected from this underclass: unwanted, unworthy of help, and increasingly seen as

dangerous.161 (For a further discussion on the association of race with crime, see footnote 31.)

These redefinitions fostered a return to a classical conception of criminology in the

U.S.162 Pointing to soaring crime rates as evidence that those administering the U.S. criminal

justice system had tipped the scales in crimes favor, this neoclassical criminology stressed that

the failure to control crime resulted from the failure to punish criminals, or a failure to punish

them enough.163 Moreover, between the late 70s and early 80s, conservatives began to argue that

it was time to admit we do not know how to rehabilitate and start thinking about the criminals

victims for a change.164

Thus, America began to incarcerate people. A lot of people.165

Ronald Reagans get tough rhetoric and peace through strength philosophy early in

(and throughout) his presidency established three key elements important to the legitimization of

prison privatization (which was officially legitimized in 1983 through the Office of Management

and Budget Circular A-76166).167 First, it contained an antigovernment aspect, i.e., Smaller

159 Katherine Beckett & Theodore Sasson, The Politics of Injustice: Crime and Punishment in America, 53 (2000); see also Punishment. 160 Michael Katz, The Undeserving Poor, 185 (1989). 161 Punishment at 33. 162 See generally Punishment; for a discussion on classical and neoclassical conceptions of criminology, see Ian Taylor, Paul Walton & Jock Young, The New Criminology: For a Social Theory of Deviance (1973). 163 See Ronald Kramer, The Ideological Construction of Crime: An Analysis of the L.E.A.A. Career Criminal Program, 5 Deviant Behavior 217 (1984). 164 Punishment at 34, quoting Francis Cullen & Karen Gilbert, Reaffirming Rehabilitation, 96 (1982). 165 See Michelle Alexander supra note 30; Wocquant; Punishment; Garland. 166 Circular A-76 reads: In the process of governing the Government should not compete with its citizens. The competitive enterprise system, characterized by individual freedom and initiative, is the primary source of national economic strength. In recognition of this principle, it has been and continues to be the general policy of the Government to rely on commercial sources to supply the products and services the Government needs. OFFICE OF MANAGEMENT AND BUDGET CIRCULAR A-76. While this last assertion is highly debatable, it served to formalize many privatization sentiments, and legitimized the privatization of correctional services, though the massive growth in prison privatization would not begin officially until roughly 1985. See Punishment, Chapter 2-3. 167 Punishment at 54.

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government is always better. (Ironically, Reagans propagation of massive tax cuts combined

with increased spending for military and criminal justice created deficits of crisis proportions

that fueled a need to cut spending.)168 Second, the privatization system was pro-business in its

embrace of the free market as a solution to Americas problems.169

Third, and most importantly, the war on drugs became an actuality. Convictions for

drug offenses are the single most important cause of the explosion in incarceration rates in the

U.S.drug offenses alone account for two-thirds of the rise in state prisoners between 1985 and

2000.170 Approximately 500,000 people are in prison or jail for a drug offense today, compared

to roughly 41,100 in 1980.171 Drug arrests have tripled. More than 31 million people have been

arrested for drug offenses since the drug war began. There are more people in prisons and jails

today for drug-related offenses than were incarcerated for all reasons in 1980.172 The drug war

provides a convict base of low-risk, high-penalty criminalslow-risk because they are not

violent offenders, high-penalty because of the biopolitics surrounding the drug war.173

Moreover, the people who find themselves incarcerated for drug-related offenses are not

rich people. About a third of those incarcerated in 2002 were unemployed at the time of

incarceration; almost 20 percent of them had no income at all, more than half of them made less

than $1000 per month, and nearly all of them made less than $2000 per month.174 At least half of

them had incomes below the federal poverty line ($11,490 for one person in 2013175).176

The war on drugs is in effect a widespread systematic mass incarceration of Americas

poorand because law enforcement officials are permitted to initiate arrests based on

reasonable suspicion, it is primarily a mass incarceration of poor minorities.177 168 Id. at 52. 169 Id. at 54. 170 See Marc Mauer, Race to Incarcerate, 33 (2006). 171 Marc Mauer and Ryan King, A 25-Year Quagmire: The War on Drugs and Its Impact on American Society, 2 (2007). 172 Id. at 3. 173 See Michael Hallet at Ch. 6, infra note 248 174 BUREAU OF JUSTICE STATISTICS, SPECIAL REPORT, PROFILE OF JAIL INMATES, 2002 (2004). 175 FAMILIES USA data, available at http://www.familiesusa.org/resources/tools-for-advocates/guides/federal-poverty-guidelines.html, last accessed August 1, 2013. 176 BUREAU OF JUSTICE STATISTICS, SPECIAL REPORT, PROFILE OF JAIL INMATES, 2002 (2004). 177 See Michelle Alexander, supra note 30 at Ch. 2. In Terry v. Ohio, the U.S. Supreme Court held that if an officer has reasonable articulable suspicion that someone is dangerous or engaged in a criminal activity, the officer is entitled for the protection of himself and others in the area to conduct a limited search to discover weapons that might be used [against the officer]. 392 U.S. 1, 30-31 (1968). This rule (known as the Terry stop-and-frisk) grants considerable discretion to officers in deciding who looks dangerous and who does not. Justice Douglas dissented from the majority in Terry, arguing that to allow searches that give the police greater power than a

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Public expenditures on corrections quadrupled during the inaugural decade of the drug

war, from approximately $6.8 billion in 1980 to $26.1 billion in 1990.178 By 1995, corrections

expenditures exceeded $40 billion. During that same period, the prison population increased

from less than 330,000 179 to almost 550,000. 180 At the same time, any alternatives to

incarceration were (and are) the political kiss of death. While politicians campaigned on

excessive promises of tax cuts and smaller government, they kept on flexing their muscles at

crime.181 They seemed completely unaware (at least publicly) of the contradiction between

building a bigger criminal justice system with many expensive prisons and imposing fiscal

restraint to help hold down taxes and government growth. Prisons became increasingly

overcrowded; many states simply could not keep up with the demand for incarceration.182 Private

incarceration presented itself, in the words of one seasoned investor, as a wonderful opportunity

for any young man to undertake.183 (Of course, not just any young [person] has the resources

to capitalize on such an opportunity.) Hence, in spite of its longstanding and well-documented

history of failure as an institution,184 the prison emerged as a private investmentfor as Foucault

observed, the prison, and no doubt punishment in general, is not intended to eliminate offences,

but ratherto use them.185

Private prisons carved inroads to the incarceration business during the late 1970s and

early 1980s via low-security, barely-visible penal services for federal bureaucracies.186 For

example, the majority of community treatment centers for inmates are private, and the

Immigration National Service (INS) has long used private contractors in handling a variety of

magistrate [judge] is to take a long step down the totalitarian path. Id. at 38. The decades since suggest that Douglas may have been correct. Evidence of a shift toward incarcerating black minorities specifically emerged shortly after 1980, and is quite apparent in the Bureau of Justice Statistics 1995 report on correctional populations. Between 1985 and 1995, the number of black Americans incarcerated per 100,000 black citizens of the United States nearly doubled, from 368 in 1985 to 700 in 1985. See BUREAU OF JUSTICE STATISTICS, SPECIAL REPORT, CORRECTIONAL POPULATIONS IN THE UNITED STATES, 1995, 24. 178 Punishment at 42. 179 BUREAU OF JUSTICE STATISTICS BULLETIN, PRISONERS IN 1980, available at http://www.bjs.gov/content/pub/pdf/p80.pdf, last accessed August 1, 2013. 180 BUREAU OF JUSTICE STATISTICS REPORT, JAIL INMATES IN 1995, available at http://www.bjs.gov/content/pub/pdf/cpius952.pdf, last accessed August 1, 2013. 181 Punishment at 43. 182 Id. 183 Id. at 282. 184 Discipline at 272. 185 Lemke at 200, citing Discipline at 272. 186 Punishment at 60.

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penal issues surrounding undocumented individuals.187 (The UK uses a similar contractual

system, with profit interests that inspire shocking (and recent) human rights violations in the

handling of deportation services.188)

Today, the Corrections Corporation of America (CCA) is by far the biggest player in the

prison-industrial complex. The CCA piggybacked prison privatization on the success of for-

profit hospitals,189 which gained legal legitimacy through political campaigns that portray[ed]

nonprofits as social parasites. 190 The CCA also gained its prominence through ongoing

acquisitions (mostly acquisitions of rivals, not government acquisitions). By utilizing the power

and influence of the American Corrections Association (ACA)a penal policy lobbying group

with members on the board of the CCA191the CCA was able to secure a number of federal and

state corrections contracts early in its existence, including one for Tennessees entire corrections

operation.192 (Arizona is currently considering a similar arrangement.193)

Virtually all private prison contracts operate on a per diem basis (a set amount of money

per inmate per day).194 Accordingly, revenues (and thus profits) are highest when the prisons are

full or at very high occupancy. Some contracts guarantee prison companies payment up to a

certain number of spaces (such contracts provide state policymakers with additional incentive to

punish through incarceration because the spaces are already paid-for whether or not they are

used); and a few use fee schedules based upon percentage of capacity. 195 In all of the

arrangements, a decrease in occupancy results in a decrease in revenue; the prison companies

always depend on the government to provide them with prisoners. 187 Id. 188 See e.g. Deborah Coles & Mark Scott, Jimmy Mubengas Unlawful Killing was a Death Waiting to Happen, The Gaurdian (July 9, 2013), available at http://www.theguardian.com/commentisfree/2013/jul/09/jimmy-mubenga-unlawful-killing-death-waiting-happen, last accessed July 31, 2013. 189 Private hospitals are outside the scope of this paper, but it is worth mentioning that this success was based only on profitability, not on any other benchmark. Private hospitals have no interest in public health in much the same way private prisons have no interest in addressing the genesis of the high incarceration rate in the United States. In the words of the Hospital Corporation of Americas CEO, We are not in the health care business. We are in the sick care business. Punishment at 59. For an overview of the manifold problems with private hospitals in the U.S., see Michael Berens, Nursing Mistakes Kill, Injure Thousands: Cost-Cutting Exacts Toll on Patients, Hospital Staffs, Chicago Tribune, A1 (September 20, 2000); Robert Kuttner, Columbia/HCA and the Resurgence of the For-Profit Hospital Business, Part I, 5 New England Journal of Medicine 335, 363-68, Part II, 6 New England Journal of Medicine 335, 446-51 (1996). 190 Punishment at 60, quoting Robert Kuttner, supra note 189. 191 Id. at 61. 192 Id. at 58. 193 Bernard Harcourt, supra note 26 at 233. 194 Id. at 93. 195 Id. at 102.

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Make no mistake: CCA exists entirely to profit from punishment. As of 2012, it had 6.6

million publicly traded shares,196 so anyone who can afford shares in the CCA can share in the

spoils of punishment. This means that the CCA has a legal obligation to do all it can to maximize

profits for its shareholdersa legal obligation to be selfish; to increase demand for prisoners as a

raw material.197 Indeed, in its 2008 annual report to its shareholders, the CCA stated:

Demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts, leniency in conviction or parole standards and sentencing practices through the decriminalization of certain activities that are currently proscribed by our criminal laws. For instance, any changes with respect to drugs and controlled substances or illegal immigration could affect the number of persons arrested, convicted, and sentenced, thereby potentially reducing demand for correctional facilities to house them.198

The economic power of private prisons shapes society, because these policy debates

over mandatory minimums, alternatives to incarceration, immigration policy, etc.take place in

a world where a multi-billion dollar industry is actively seeking to maintain existing policies and

increase incarceration rates for profit.199 Moreover, these policy decisions are made by a class of

stakeholders much more likely to gain than to suffer from mass incarceration.200

Politicians, industry leaders, and agency heads have been instrumental to the CCA since

the inception of the idea of operational privatization (initially, the CCA contracted prison

operationsit did not build its own facilities until it had amassed a number of operational

contracts).201 These stakeholders helped the CCA amass its initial capital202 and helped it avoid a

Court decision on the questionable constitutionality of privatizing prisons in the first place.203

196 Id. at 81. 197 See Punishment at 38; See also Gimbel v. Signal Co., Inc., 316 A.2d 599, 608 (Del. Ch. 1974); Cede & Co. v. Technicolor, Inc., 634 A.2d 345, 361 (Del. 1993); In re The Walt Disney Co. Derivative Litigation, 906 A.2d 27 (Del. 2006). 198 CCA 2008 Annual Report as quoted in Punishment at 92. 199 The CCA was officially valued in 1997 at 53.5 billion. Today, its estimated value is close to $70 billion. Bernard Harcourt supra note 26 at 236. 200 See Pashukanis, supra note 71; see also the Foucauldian perception of property outlined in Part II. 201 For a long (but by no means exhaustive) list of the politicians, industry leaders, agency heads, and lobbying groups involved in the amassing of capital and founding of the CCA, see Punishment, 95-98. 202 Punishment at 95. 203 The non-delegation doctrine springing from the legislative powers clause of the U.S. Constitution raises issues concerning the legality of delegating both the power to restrict liberty and the responsibility for doing so. U.S. Const. Art. I. A host of legal scholars have contested the constitutionality of prison privatization. See e.g., Ira Robbins, The Impact of the Delegation Doctrine on Prison Privatization, 35 UCLA L. Rev. 911 (1988).

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The CCA spent over $1.1 million on campaign contributions to politicians in the southern states

during the 2000 election cycle,204 and spent at least $10 million on lobbying between 2004 and

2008.205 Through efforts such as these, the CCA has shaped the very political landscape it

traverses (power as a strategy). For example, California forbade the use of private prisons until

Governor Schwarzenegger declared that prison reform options in the state would include the

use of privatization.206 (He accepted a $53,000 donation from the CCA the year before.207) The

CCA also successfully lobbied for the four key instrumental carceral expansions mentioned in

the next section (Part V) and killed legislation in a number of states that would limit or impose

penalties on prison privatization as an industry.208

The CCAs existence depends exclusively on services placed upon the bodies of

prisoners. (Although forced prison labor was initially a source of revenue for the CCA,209 it has

all but disappeared in recent decades.)210 The body of the condemned is no longer an

instrument through which a prisoners soul may be reached. The body now operates both as an

object and as an instrument. It is an object upon which to place services (executed through the

administrative apparatus of the prison) and an instrument through which profit may be

extracted.

V. MASS INCARCERATION AND PRIVATE PRISONS: TECHNOLOGIES AND RATIONALITIES OF NEOLIBERAL PENALITY

As we have seen in Parts III and IV, American neoliberalism (individualization of

economic responsibility coupled with ideological homogeny) drives an increasing rift between

the social and the economic in terms of governmental and personal responsibility. As a

result, the guiding principle of public action is not solidarity but compassion.211 As it becomes

204 For a long (but by no means exhaustive) list of politicians to whom the CCA contributed, see Punishment at 98-99. 205 Punishment at 99. The $10 million number is likely to be significantly lower than the actual amount spent on lobbying efforts. Corporate contributions to certain trade associations are excluded from public records, as are political contributions made on the CCAs behalf or through its executives individually. Id. 206 Id., quoting Geoffrey Segal, States Tap Private Prisons, Heartland Institute (July 1, 2004), available at http://news.heartland.org/newspaper-article/2004/07/01/states-tap-private-prisons, last accessed August 2, 2013. 207 Punishment at 99. 208 Id. 209 Id. at 48. 210 Bernard Harcourt supra note 26 at 235-36. 211 Id. at 49.

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increasingly informed by the rhetoric of personal responsibility, the welfare state shifts to the

charitable statea moralistic conception of poverty in which poverty is a product of individual

failure, not societal failure. 212 I will call this Neoliberal Darwinismthe warped logic

governing a society in which the unemployed thug and the pedophile213 (for example) are

incarnations of personal failures (failure to live up to the ethics of wage work and sexual self-

control); where economic winners are praised for vigor and intelligence while the losers in

the struggle for survival are degraded through punitive focus on character flaws and behavioral

deviancies. As a result of Neoliberal Darwinism, the therapeutic philosophy of rehabilitation214

has been supplanted by a managerialist approach to punishment centered on the cost-driven

administration of carceral stocks and flows (paving the way for prison privatization).215

a. Rationalities of Neoliberal Penality

Under this managerialist approach, the drug war, the war on crime, and other policies of

hyperincarceration spawned a fast-growing commercial sector for operations helping the state

enlarge its capacity to confine (e.g. food, cleaning, medical, transportation, custodial, etc.). As

we have seen, these policies stimulated the resurgence and exponential expansion of private

prisons. Carceral services (both private and public) are now the third-largest employer in the

nation, and the carceral function absorbs over one-third of the justice budget.216 Private prisons

provide cost-effective solutions to state officials who had been perpetually strapped for prison

space since the inception of the drug war, producing what Garland calls warehouse space to

store the incarcerated. 217 Prisons (in general) enter new territory as instruments of

governmentalitythey emerge as extraordinarily efficacious instruments for tracking 212 Id. 213 The penal governance of sexual deviance (e.g. pedophelia) tends to aggravate the very phenomenon it is supposed to fight. See Wacquant, Ch. 7. 214 For an account of the evolution of rehabilitative approaches to crime, see Ian Taylor, Paul Walton & Jock Young, The New Criminology: For a Social Theory of Deviance (1973). 215 Wacquant at 2. 216 Id. at 153. This figure includes private state and federal prisons, public state prisons, public federal prisons, and all of the industries supporting those prisons. 217 Many of these private facilities are not located in the state in which the offender committed the offense. As a result, many prisoners are shipped off to private prisons in Texas, for example, to serve time for a crime committed in Georgia. This is a blatant violation of family visitation rights. Wacquant at 65. For a legal explanation of the rights of prisoners in private prisons in the U.S., see Robin Miller, Rights of Prisoners in Private Prisons, 119 A.L.R. 5th 1 (2004).

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troublesome or potentially troublesome persons (deviant candidates for disciplinary

normalization).218

Garland describes the managerialist approach as a cultural formation [that] has grown up

around the phenomena of high crime rates and increased [social] insecurity that gives the

experience of crime a settled institutional form. 219 This cultural formationthe crime

complex of late modernity, as Garland puts itis characterized by seven distinct rationalities of

governmentality (to use Roses distinction):

(1) High crime rates are regarded as normal social fact.

(2) Emotional investment in crime is widespread and intense, encompassing elements of

fascination as well as fear, anger and resentment.

(3) Crime issues are politicized and regularly represented in emotive terms.

(4) Concerns about victims and public safety dominate public policy.

(5) The criminal justice state is viewed as inadequate or ineffective.

(6) Private, defensive routines are widespread and there is a large market in private

security.

(7) A crime consciousness is institutionalized in the media, popular culture and the built

environment.220

Once these factors permeate the rationalitization (i.e. the process of producing

rationalities) of a societys attitudes toward crime, they do not change quicklythey even

remain unaffected by actual crime rates.221 They become settled cultural facts that are sustained

and reproduced by cultural scripts and not by criminological research or official data.222 While

Garlands seven rationalities have been criticized for failing to acknowledge the relational and

emergent aspects in the Foucauldian analysis of disciplinary power,223 the core elements of his

analysis ring true through the works of Wacquant, Rose, and Simon: (1) there is a recoded penal-

welfarism (i.e. a greater weight assigned to public safety (through removal of the accused from

218 Wacquant at 135. The various police agencies of the U.S. now hold some 55 million criminal files on over 30 million individualsa number corresponding to nearly one-third of the U.S. adult male population. 219 David Garland, The Culture of Control: Crime and Social Order in Contemporary Society, 163 (2001), [hereinafter Garland] 220 Id. at 163. 221 Id. at 164. 222 Id. 223 Tim Owen, Culture of Crime Control: Through a Post-Foucauldian Lens, THE INTERNET JOURNAL OF CRIMINOLOGY (www.internetjournalofcriminology.com) 1, 6-8 (2007).

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society) than to betterment of the accused (through education or rehabilitation));224 (2) there is a

criminology of control (i.e. a criminology that aims to change the values and attitudes of

offenders; to bring them into line with prevailing normative codes (social order is a problem of

value consensus));225 and (3) an economic, rather than social, style of reasoning is employed (as

evidenced by incentive structures, supply and demand policies, crime costing, stocks and

flows language, etc.).226

Most importantly, Garland points out a reversal in the individualization trends Foucault

emphasized in Discipline and Punish. Foucault held that, in the era of the soul, the body of the

criminal took center stage as an instrument through which his or her soul may be reached.

Sentencing was individualized, biographical accounts were assembled, social and psychological

reports were prepared, and experts abounded to further tailor punishments appropriate for each

individual soul.227 This is no longer the case. Processes of individualization still exist, but they

are increasingly centered upon the victim. (Recall the American neoliberal attitudinal shift

toward the phenomenon of crime: i.e., We dont know how to rehabilitate, so lets focus on the

victims for a change!) Indeed, [i]ndividual victims are to be kept informedoffered support

that they needconsulted prior to decision-making[and] involved in the judicial process from

complaint through to conviction and beyond.228 Victims are routinely invited by courts to

describe how the offense affected them, to individualize the impact of the crime upon the victim

in all of his or her human specificity. Moreover, [s]everal American states now permit

individual victims to make recommendations to the judge prior to sentencing, and to put their

views to the parole board prior to the release of their offender.229 The offender is now part of a

class of offendersinstitutions still peer into the offenders mind in executing the sentence, but

once condemned, the offender