Free Market Criminal Justice

Criminal justice and democracy -- Criminal justice by the invisible hand -- The free market law of plea bargaining -- Private responsibility for criminal justice -- The high cost of efficiency -- Criminal justice and the security state -- Epilogue--the American way of criminal process

It is widely believed today that the free market is the best mechanism ever invented to efficiently allocate resources in society. Just as fundamental as faith in the free market is the belief that government has a legitimate and competent role in policing and the punishment arena. This curious incendiary combination of free market efficiency and the Big Brother state has become seemingly obvious, but it hinges on the illusion of a supposedly natural order in the economic realm. The Illusion of Free Markets argues that our faith in “free markets” has severely distorted American politics and punishment practices. Bernard Harcourt traces the birth of the idea of natural order to eighteenth-century economic thought and reveals its gradual evolution through the Chicago School of economics and ultimately into today’s myth of the free market. The modern category of “liberty” emerged in reaction to an earlier, integrated vision of punishment and public economy, known in the eighteenth century as “police.” This development shaped the dominant belief today that competitive markets are inherently efficient and should be sharply demarcated from a government-run penal sphere. This modern vision rests on a simple but devastating illusion. Superimposing the political categories of “freedom” or “discipline” on forms of market organization has the unfortunate effect of obscuring rather than enlightening. It obscures by making both the free market and the prison system seem natural and necessary. In the process, it facilitated the birth of the penitentiary system in the nineteenth century and its ultimate culmination into mass incarceration today.

It is widely believed today that the free market is the best mechanism ever invented to efficiently allocate resources in society. Just as fundamental as faith in the free market is the belief that government has a legitimate and competent role in policing and the punishment arena. This curious incendiary combination of free market efficiency and the Big Brother state has become seemingly obvious, but it hinges on the illusion of a supposedly natural order in the economic realm. The Illusion of Free Markets argues that our faith in “free markets” has severely distorted American politics and punishment practices. Bernard Harcourt traces the birth of the idea of natural order to eighteenth-century economic thought and reveals its gradual evolution through the Chicago School of economics and ultimately into today’s myth of the free market. The modern category of “liberty” emerged in reaction to an earlier, integrated vision of punishment and public economy, known in the eighteenth century as “police.” This development shaped the dominant belief today that competitive markets are inherently efficient and should be sharply demarcated from a government-run penal sphere. This modern vision rests on a simple but devastating illusion. Superimposing the political categories of “freedom” or “discipline” on forms of market organization has the unfortunate effect of obscuring rather than enlightening. It obscures by making both the free market and the prison system seem natural and necessary. In the process, it facilitated the birth of the penitentiary system in the nineteenth century and its ultimate culmination into mass incarceration today.

This collection offers a comprehensive review of the origins, scale and breadth of the privatisation and marketisation revolution across the criminal justice system. Leading academics and researchers assess the consequences of market-driven criminal justice in a wide range of contexts, from prison and probation to policing, migrant detention, rehabilitation and community programmes. Using economic, sociological and criminological perspectives, illuminated by accessible case studies, they consider the shifting roles and interactions of the public, private and voluntary sectors. As privatisation, outsourcing and the impact of market cultures spread further across the system, the authors look ahead to future developments and signpost the way to reform in a ‘post-market’ criminal justice sphere.

In Our Right to Drugs, Szasz shows how the present drug war started at the beginning of this century, when the US government first assumed the task of protecting people from patent medicines. By the end of World War I the free market in drugs was but a dim memory. Instead of dwelling on the familiar impracticality and unfairness of drug laws, Szasz demonstrates the deleterious effects of prescription laws, which place people under lifelong medical supervision. The result is that most Americans today prefer a coercive and corrupt command drug economy to a free market in drugs.

At the end of the twentieth century, the bookstores are full of books on crime, though this title will certainly not find a place on the same shelves. In the massive Waterstones bookstore in the city of Manchester, England, where I lived through most of the 1990s, the ground floor display area was rearranged in 1995 so as to accommodate, right at the front of the store, several hundred new titles, on topics like Serial Murderers and Sexual Crimes of the Twentieth Century.l Several of these new books are companion volumes to movies on release in the city's cinemas or, in some instances, are simply the original text on which the movies are based. The movies in question - Shallow Grave, Silence of the Lambs, Reservoir Dogs, Natural Born Killers and others - focus heavily on interpersonal violence and murder and also place great emphasis in the manner of many earlier cinematic genres - on the idea of the 'criminal mind' (not least, as a way of dramatizing the detection of the originating criminal act) but also - to a significant extent, these are movies which emphasize the idea and contemporary social presence of evil. Similar moral and psychologistic preoccupations are now also widely apparent on primetime television - most notably, in Britain, in the extraordinarily powerful Cracker series, produced by Granada Television in 1994 and 1995, watched by over 15 million people, and featuring, inter alia, the forensic investigation' of serial and sexual murders, some of them extremely graphically displayed (Crace 1994).2 The prominence of 'Gothic' themes in movies about violent death is not new in itself: there is a long history of interest in the cinema in horror and, indeed, in 'transgression' and evil. What may be definitive about the present genre of movies as well as the range of fictional and non-fictional titles in the bookstores about crime is the overwhelming focus on murder and killing represented in very contemporary and mundane, ordinary and, indeed, 'respectable' settings, and the powerful suggestion that these movies are a representation of the risks and dangers involved in everyday life at the end of the twentieth century. The bookstore display in Waterstones is straightforwardly called the 'Real Crimes' section.

The newest work from one of the most preeminent voices writing in the legal/political arena today, this important book presents a new conception of the relationship between free markets and social justice. The work begins with foundations--the appropriate role of existing "preferences," the importance of social norms, the question whether human goods are commensurable, and issues of distributional equity. Continuing with rights, the work shows that markets have only a partial but instrumental role in the protection of rights. The book concludes with a discussion on regulation, developing approaches that would promote both economic and democratic goals, especially in the context of risks to life and health. Free Markets and Social Justice develops seven basic themes during its discussion: the myth of laissez-faire; preference formation and social norms; the contextual character of choice; the importance of fair distribution; the diversity of human goods; how law can shape preferences; and the puzzles of human rationality. As the latest word from an internationally-renowned writer, this work will raise a number of important questions about economic analysis of law in its conventional form.

This book argues that ‘social democratic criminology’ is an important critical perspective which is essential for the analysis of crime and criminal justice and crucial for humane and effective policy. The end of World War II resulted in 30 years of strategies to create a more peaceful international order. In domestic policy, all Western countries followed agendas informed by a social democratic sensibility. Social Democratic Criminology argues that the social democratic consensus has been pulled apart since the late 1960s, by the hegemony of neoliberalism: a resuscitation of nineteenth-century free market economics. There is now a gathering storm of apocalyptic dangers from climate change, pandemics, antibiotic resistance, and other existential threats. This book shows that the neoliberal revolution of the rich pushed aside social democratic values and policies regarding crime and security and replaced them with tougher ‘law and order’ approaches. The initial consequence was a tsunami of crime in all senses. Smarter security techniques did succeed in abating this for a while, but the decade of austerity in the wake of the 2008 financial crisis has seen growing violent and serious crime. Social Democratic Criminology charts the history of social democracy, discusses the variety of conflicting ways in which it has been interpreted, and identifies its core uniting concepts and influence on criminology in the twentieth century. It analyses the decline of social democratic criminology and the sustained intellectual and political attacks it has endured. The concluding chapter looks at the prospects for reviving social democratic criminology, itself dependent on the prospects for a rebirth of the broader social democratic movement. Written in a clear and direct style, this book will appeal to students and scholars of criminology, sociology, cultural studies, politics, history, social policy, and all those interested in social democracy and its importance for society.