The Transformation of Neoliberal Penality

1 March 2019

Bernard E. Harcourt is a critical theorist, professor of law and political science at Columbia University, and practicing death penalty attorney. He has written extensively on the relationship between neoliberal ideology and our practices of punishment, notably in The Illusion of Free Markets (Harvard University Press, 2011). Harcourt is the author most recently of The Counterrevolution: How Our Government Went to War Against its Own Citizens (Basic Books, 2018). This interview is the first in Tocqueville 21’s series on prisons, police, and democracy.


Jacob Hamburger: The Illusion of Free Markets describes what appears to be a paradox: the coexistence of free markets and mass incarceration. What were you trying to point to with this juxtaposition?


Bernard Harcourt: In that work, I tried to place both terms—free market economics and mass incarceration—under the rubric of what I and others call “neoliberal penality.” On the one hand, free market ideology implies limited government involvement in economic affairs, based predominately on the perception of the state’s incompetence in those domains. On the other hand, we tend to embrace an expansive state apparatus when it comes to prisons, punishment, and policing.


The government shutdown that we recently experienced was a perfect reflection of this paradox. It revealed which government services we consider essential and necessary for society to function, and which are not. If you look at the agencies that were still running during the shutdown, you will find the military, homeland security, and law enforcement. We still had a massive prison and policing apparatus. By contrast, the regulatory mechanisms directed at the economic sphere, like the Environmental Protection Agency or the Securities and Exchange Commission, got shut down. Security is what the state is good at, economics or economic regulation is not—or so we think.


This tension between the belief that the state is incompetent in economic affairs, but competent in policing and security, reflects the paradox of our neoliberal condition. Maintaining the fiction of an unregulated—or less regulated—market space requires, in reality, a robust police state. We need enforcement mechanisms to construct the markets, police them, and make them look free. We need a whole policing apparatus to prevent people from “bypassing the market,” as law-and-economists would say. In this sense, the police state maintains the appearance of a free market. Like the trading pits of a stock exchange, we have a space that looks as if it’s functioning entirely on the basis of supply and demand, on free exchange between buyers and sellers. But this space has an extraordinary scaffolding structure surrounding it, and is heavily policed in order to give it this appearance of freedom.


Your more recent writings have focused on a different type of policing, which you refer to as “counterinsurgency.” What do you mean by this?


When I talk about the “counterrevolution,” I’m referring to a mode of governing now, in the United States, that rests on a paradigm of counterinsurgency warfare. Counterinsurgency theory was developed in the 1950s and 1960s by the French in Indochina or Algeria, the British in Malaya, and the Americans in Vietnam, but has proliferated in the domestic context since 9/11. We turned to it and embraced it in our wars in Iraq and Afghanistan, but since then, it has come home to roost. The counterinsurgency paradigm of governing assumes a tripartite vision of society—a Maoist vision of society—that consists of a small minority of active insurgents, a small minority of active counterinsurgents, and a passive majority. The aim of the counterinsurgency is to wage war against the insurgents and for the “hearts and minds” of the majority.


As both personnel and military equipment have returned home from post-9/11 wars and conflicts, and have been incorporated into the domestic security apparatus, we see states and localities increasingly deploying counterinsurgency tactics against their own citizens. This manifests itself most clearly in the use of military technology and strategies by local police forces, as well as mass or total surveillance, especially of social media and internet use.


Do you see a coherent system emerging between our criminal justice institutions as you describe them in some of your earlier work, and this newer “counterinsurgency” mode of governing? For example, can we think of the criminal within the framework of “neoliberal penality” as serving a comparable role to the “internal enemies” of counterinsurgency?


There’s coherence in that both forms of governing rely on a robust security mechanism and the construction of a fictitious “criminal” or “internal” enemy.


Just to back up for a minute, what I have in mind when I talk about “ordinary” forms of policing, forms of policing that came before the hyper-militarized counterinsurgency-style policing we have today, are practices like “stop-and-frisk” or “broken-windows” policing, techniques that involved high levels of police contact and misdemeanor arrests. You have to understand though that those policing strategies only make sense on the basis of a certain imagination of what “orderliness” is and who the “disorderly” are.


Order maintenance, say in New York City circa 1994, resulted in “quality-of-life” offenses that included, for example, loitering or hanging out on stoops. To outsiders of certain neighborhoods, this sort of behavior was perceived as disorderly or threatening, even though to many residents of those neighborhoods the people on the stoops were the eyes and ears of the community. In their own way, they exercised an enormous amount of social control, and were perceived as a form of order. Similarly, commercial sex operators and prostitution were perceived as markers of disorder, even though in reality sex workers will often make sure to operate in areas that are relatively safe. This is the sort of cultural imposition we see in the order maintenance paradigm’s construction of “disorderly people.”


Now, there’s a parallel between these ways of imagining “criminals,” and the way in which someone like President Donald Trump today constructs Muslims or undocumented Latin Americans into “internal enemies,” “rapists,” and “gang-members.” There is a direct relationship between the “criminal,” or the “delinquent,” in the context of order maintenance, and the “internal enemy” in the context of the counterinsurgency paradigm.


Perhaps one difference worth pointing out, though, is that the counterinsurgency form of governing has a much more explicit political dimension. As you describe it, counterinsurgency wages war against internal enemies in order to win over the “passive majority.” We don’t see the same sort of struggle to win hearts and mind in the context of “order maintenance.”


The reason is that, to my mind, the order maintenance strategy is more devious—psychologically devious—though of course counterinsurgency is also a form of psychological warfare. Order maintenance assumes that the liberal majority sincerely does not want to see the kinds of behaviors it characterizes as delinquent—squeegee men, panhandlers, prostitutes, etc. It’s not so much that those in power take the majority to be passive, but rather that they see themselves as satisfying the majority’s often embarrassing instincts.


What made broken-windows policing so popular in a city like New York was that a lot of left liberals actually did not want to have panhandlers asking them for money on the street. They didn’t want to see homeless people, or deal with prostitution. They didn’t like to see people hanging out on streets and stoops. But they couldn’t quite get themselves to say they wanted to get rid of the panhandlers and prostitutes. So when they encountered this new theory telling them that these panhandlers and prostitutes were in fact causing harm, creating disorder, and worse, real serious crime, they could all of a sudden justify turning against the poor and the homeless, and criminalize them without feeling guilty about it. The broken-windows theory turned what was once moral discomfort and guilty feelings into a self-righteous repression of crime.


What’s interesting is that broken-windows policing was originally proposed and touted as an alternative to “lock-em-up” criminal enforcement and incarceration—in effect, an alternative to what we now recognize as mass incarceration. Of course, we now know that’s not true—that arrests, misdemeanor records, and police contacts increase people’s sentences and feed into mass incarceration. But in the 1990s, when crime was high in this country, order maintenance methods were presented as the only alternative to locking people up. And that’s what made them attractive, especially to left liberals. I’ve made this argument before in what I’ve called the “collapse of the harm principle.”


So overall I think we see here two different ways of going about persuading a population. The counterinsurgency approach assumes the passivity of the masses, and tries to win them over. The earlier form of order maintenance tried to present its style of policing in a way that assumed what the masses already actively supported. It imagined it could satisfy people’s intuitive desires, and did not need to unwittingly seduce them.



Whether we’re talking about winning over passive citizens by force, or claiming to express the will of the majority through invasive police tactics, these paradigms of governing give us a grim vision of democracy. What room is there to alter or resist these paradigms through democratic action?


What makes your question difficult to answer is that, as the counterinsurgency paradigm becomes second nature to so many of us in this country—as we engage in these practices through our military abroad, and then bring them home, as both personnel and military equipment return and are incorporated into the domestic security apparatus—democratic processes begin to reinforce them. We don’t think of them as anti-democratic, because they have been absorbed by the demos. This also means that democratic action may not easily resist them.


At the same time, you’ve written recently about movements in both France and the United States that one could characterize as attempts to set democratic engagement against various forms of policing, from the protests in Chicago over the police killing of Laquan McDonald to the gilets jaunes movement in France.


It’s worth asking, though, in what sense these movements are democratic. In both cases, as well as the Occupy Wall Street movement from some years before, you have a minority that rises up, by means of grassroots organizing, and challenges the majority position. These are movements that are not majoritarian, but that nonetheless come from the demos. They take on a democratic personality in their attempt to transform the majority view.


As we begin to understand more about the patterns between different forms of governing that exist in the present moment, it’s worth asking whether we’ve strayed from the concept of neoliberalism.


We have to be very careful about how we employ the term “neoliberal” in this conversation. I wouldn’t want to structure this analysis so as to say that we were once in an era of neoliberal governance, and now we’re in an era of counterinsurgency governance. It’s not as if we have a totally new and different paradigm from the world of the 1990s. Both then and now, neoliberalism is dominant as a form of political-economic ideology.


We have a tendency today to use the language of neoliberalism rather than capitalism. Some people used to refer to the present as a period of “advanced capitalism” or “late modern capitalism,” or as Nancy Fraser puts it “financialized capitalism,” but I think even those terms have been replaced today by neoliberalism.


What people are referring to when they use the term neoliberalism is, first, a belief in the efficiency and effectiveness of market deregulation, which rests on the idea that there could be such a thing as a de-regulated economy. That is the ideological dimension. Then, second, there are certain practices associated with neoliberalism that fall under the label of privatization and austerity. These often result in a grab for the commons, or what we call “socializing losses while privatizing gains.” Finally, there are institutional dimensions to neoliberalism: not only organizations such as the IMF, but many other institutions as well that maintain the fiction of deregulated spaces. Think of all of the institutions that made it possible to bail out AIG and Citibank in 2008.


Both the apparatus of order-maintaining policing that developed in the 1990s and the counterinsurgency practices of the post-9/11 period are part of this institutional framework. The question we need to pose today is how each of these helps preserve the ideologies and practices of neoliberalism.


One of the functions of the policing of the 1990s was to mask the neoliberal economic transformations going on during the time. Again, I think it helps to look at a city like New York, which was the perfect lab for these continuities and discontinuities. Broken-windows policing was able to mask, among other things, the economic redistribution going on in the real estate sector. Most people believed for example that Times Square got “cleaned up” by the NYPD’s quality-of-life enforcement, getting rid of prostitutes, hobos, and vagrants. This was the story that Rudy Giuliani told, and Bill Bratton, but that’s not at all what happened. Instead, there was a massive wave of reinvestment and rebuilding in Times Square, a redevelopment plan that dated back to the 1970s which involved tearing down the old theaters and replacing them with luxury high-rises and offices for law firms, accounting firms, and large corporations. And then, of course, there were the new commercial spaces, Niketown and the like, the Disneyland that we now have. What remade Times Square was a privatization of the commons, but this was masked, and therefore made possible, by the rhetoric of broken-windows policing.


So we have to ask, similarly, what role there is for the counterinsurgency paradigm within neoliberalism. Much of the recent populist discourse in this country, in Europe, and in other places such as Brazil, has an anti-neoliberal flavor to it. Much of the European new right speaks in terms of the inequalities produced by decades of neoliberalism, and some of Trump’s rhetoric is also a story of people who have been abandoned and rendered precarious by recent forms of economic neoliberalization. A lot of the new right expressly critiques the entrepreneurialism associated with neoliberalism, as well as the “uberization” of the workforce.


But I think that is all working as a cover. While it is all going on at the rhetorical level, we don’t see the critique of neoliberalism reflected in actual practice. The fiscal policies of the Trump Administration have predominately benefited the wealthier classes. The 2018 tax break was for the rich. So the discourse appeases the new right masses, while redistributing to the wealthiest in the country—including Trump himself.


I think the question of how counterinsurgency modes of governing aid neoliberalism is incredibly complicated, and answering it is one of our greatest and most urgent tasks today.


Photo Credit: Ciar, NYPD cops in Manhattan, via Wikimedia Commons, Public Domain.

Photo Credit: Konrad Ciężki, via Pexels.


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