David Garland on How America’s Political Economy Informs Its Penal Exceptionalism

David Garland

“America’s political economy is much more criminogenic than that of other developed countries” — David Garland.

In Towards A Theory of Americal Penal Exceptionalism, David Garland provides an argument for looking at America’s ‘penal exceptionalism’ through the lens of its distinctive political economy. He argues that America’s hyperpunitivity is a response to exceptional levels of violence and disorder, emanating from lack of social control caused by the “ultra-liberal” political economy.

According to Garland, America’s ultra-liberal political economy with its minimal welfare state for the poor adversely affects the social control of families and communities which are most vulnerable to the free-market economics paradigm. This lack of social control then contributes to rising violence, which is then responded to by the state with the overwhelming use of penal control rather than social interventions. By reintegrating the ‘sociology of punishment’ and ‘sociology of crime and deviance’, Garland argues that:

“America’s ultra-liberal political economy — characterized by stark inequalities, weakly restrained market forces, and minimal social protection — is detrimental to the functioning of poor families and communities, tending to limit their social control capacities and giving rise to levels of neighbourhood disorganization, social dislocation, and criminal violence that are markedly higher than those of other developed societies”

Garland begins by coining the concept of ‘penal action’ to distinguish the nature of America’s penality with that of other developed welfarist states. He defines ‘modes of penal action’ as practices adopted by the penal power to operationalise punishment to produce intended effects on the offender; something which he compares to Foucault's use of the term ‘penal tactics’ to distinguish disciplinary and corporal punishments. He argues that while other developed states operationalise punishment through penal assistance (restorative work, correctional treatment) and penal levies (fines), America has been disproportionately using penal control (imprisonment, incapacitation). While highlighting that America’s political economy since the 1970s has generally privileged the extension and intensification of penal control, he argues that:

“The leading characteristic of the American penal landscape today is neither harshness, vengefulness, nor cost-cutting: though these are present in abundance. Its leading characteristic is the imposition of penal control — a fundamental imperative embodied in sentencing law, in the culture of enforcement, and in the legal provisions that mandate judges to impose long-lasting penal controls on criminal offenders.”

Garland then goes on to submit that the lack of welfarism in America’s political economy, intertwined with legacies of racial oppression, segregation, and exclusion, has incapacitated marginalised communities to exercise effective social control. This ‘American inequality’ has exposed minority communities to market-generated risks (unemployment, poverty, inequality, inadequate housing, food insecurity, and so on) while providing them with fewer social protections. This has adversely affected the capacity of minority communities to maintain effective social control, resulting in rising violence and disorder in their neighbourhoods. These structurally created ‘risk areas’ are not only prone to disorder but also inform the state’s response to such violence:

“ To recognize that many poor, minority neighbourhoods exhibit very high rates of violence is neither to blame their residents nor to suggest a causal link between race and violence.19 It is to call attention to a social problem that is disproportionately experienced by communities of colour; is intimately linked to the problem of mass incarceration, and is rooted in America’s distinctive political economy.”

Garland then goes on to hypothesize that America’s political economy that creates such as “social dislocation” of minority communities, also influences the hyperpunitive response of its criminal justice system. He says that there’s widespread scepticism towards social programmes for “undeserving” minority communities coupled with a widespread assumption that for crime control, punishment works:

“Given powerful resistance to taxation, Republican opposition to social spending, the short-termism of election cycles, popular hostility toward ex-prisoners and people on welfare, and a division of political power that allows numerous opportunities to veto controversial legislation, American governments are generally predisposed to reject preventative social investments and rely instead upon post facto responses… In contrast, there is a ready-made resort to police, prosecution, and imprisonment that makes penal control the path of least resistance.”

Another reason behind America’s criminal justice system’s frequent recourse to penal control is the weak state capacity of officials at all levels of government to adopt social measures towards crime control. Garland argues that unlike other affluent states, America’s political economy has created a welfare state which is much less expansive and much less enabling:

“The social infrastructure of American government is, by comparison, less extensive and less well-resourced. City governments, in particular, lack the power to undertake elaborate or costly social initiatives, so urban problems are rarely effectively addressed in the absence of state or federal assistance. America’s meagre welfare state is less well equipped with the kinds of soft power — the social services, personnel, infrastructure, and capacity for positive, coordinated action — that other nations use to deal with crime and disorders.”

Therefore, Garland argues, that the politicians, policymakers, and the judiciary in America, when faced with urgent demand to respond to rising violence, have no other option at their disposal but penal control. The criminal justice agencies, he further submits, are tasked with functions which are performed by social service agencies in other states:

“Jails are America’s biggest mental health facilities — a task for which they are singularly ill-suited. And America’s police — relatively ill-trained as they are — are expected to manage the social and health problems of poor communities in addition to the work of law enforcement.”

Complement this with Katherine Beckett and Steve Herber on New Social Control in Urban America, and Hans Boutellier on the Convergence of Social Policy and Criminal Justice.