David Garland is the Arthur T. Vanderbilt professor of law and professor of sociology at New York University and an honorary professor at Edinburgh University. He is author of the newly published book Law and Order Leviathan: America’s Extraordinary Regime of Policing and Punishment.
C. J. Polychroniou: The United States has long portrayed itself as the greatest and freest country in the world, a model democracy for other countries across the globe. The reality, however, is that the US is the most economically unequal society in the developed world and one of the worst countries for racial equality. In addition, its weak and fragile liberal-democratic institutions have been exposed in recent times for all to see, while its penal system is what may easily be described as a national disgrace and an international embarrassment. Indeed, as you argue in your recently published book Law and Order Leviathan, the US is also an outlier among modern democracies in its policing and punishment practices, and this is indeed by no means a new phenomenon. How should we understand the country’s long-standing obsession with law and order?
David Garland: Yes, people think of America as Alexis de Tocqueville’s civil society when in fact it’s often closer to Thomas Hobbes’ authoritarian state. We see these repressive characteristics today in the conduct of Immigration and Customs Enforcement agents, but for the last 40 years the leading example has been the massive deployment of penal power by America’s criminal legal system—a deployment that has occurred at every level of government with broad bipartisan support.
The fundamental cause that has shaped America’s penal state is the nation’s racialized political economy and the material conditions created by its economic and political structures.
America’s modern regime of policing and punishment is altogether extraordinary when measured against the practices of other developed nations. American police kill civilians at a much higher rate; American courts impose longer and more frequent prison sentences; American prisons house massively more individuals, particularly Blacks and Latinos; and Americans with felony convictions are subject to many more controls and constraints after they serve their sentence. No other democracy exercises penal power to this extent. To find historical parallels, we have to look to the Soviet gulags or Mao’s political prison system.
There are many causes that converged to bring about America’s penal Leviathan—fear of crime, racism, neoliberalism, the appeal of law and order politics, a culture of cruelty and indifference—but the fundamental cause that has shaped America’s penal state is the nation’s racialized political economy and the material conditions created by its economic and political structures.
C. J. Polychroniou: The US has a weak welfare system and a distinct political economy in general compared to many European countries. Is there a direct link between weak welfare structures and the employment of aggressive policing and harsh punishment?
David Garland: Yes, and the book shows in detail what these linkages are and how they operate. Like its penal state, America’s political economy is an international outlier, with characteristics that set it apart from the economic arrangements of other high-income nations. This is especially true of its labor market—which provides fewer protections for working people, and more low-paid, precarious employment, making for a level of insecurity and instability that is unknown elsewhere in the developed world. On top of this, America’s welfare state provides less support for poor people and for those in need.
Material conditions for working people grew worse after the 1960s when the economic dislocations of deindustrialization were exacerbated by the collapse of the New Deal order, the decline of trade unions, and federal government’s abandonment of the inner cities. In the 1980s and 1990s, America exhibited social-problem levels markedly higher than other developed nations, the most striking of which was a rate of lethal violence—mostly gun homicides—that was off-the-charts high compared to other affluent countries.
The outlier status of America’s penal state will persist unless and until the nation’s political economy is transformed.
Drawing on urban studies and the sociology of violence, I show how pressures produced by America’s political economy—unemployment, disinvestment, deteriorating housing, limited social services, and so on—destabilize poor neighborhoods, undermining community life and family functioning, especially in racially segregated areas with concentrated poverty and population turnover. The result is that the vital processes of socialization, social integration, and informal social control normally carried out by families, schools, neighbors, and employers grow weak and fail, leading to social problems, social disorder, and criminal violence. These problems are deepened by the widespread availability of guns—another exceptional feature of the American landscape.
When homicides and armed robbery rates rose, and cities became disorderly and unsafe, voters demanded that something be done to improve public safety and protect their businesses and property values. But the same political economy that disorganized communities and triggered criminogenic processes also limited the governmental responses to these problems. In America’s racialized ultra-liberal political economy, redistributive policies are generally unpopular. And because responsibility for public safety is, in the US, a local function, few municipalities had the resources needed to respond to crime using the social policies and economic investments that are common in social democratic nations. Instead, they defaulted to the cheap policy instruments that were within their toolkit, namely police and punishment.
Moreover, American-style policing and punishment turns out to be remarkably aggressive. Why? Because of public indifference to the fate of those caught up in the carceral net; because the courts refuse to hold police and prisons to account; but mainly because penal state agents operate against a social background that is more disorganized, more dangerous, and more gun-laden than that of any other developed nation.
C. J. Polychroniou: As you point out in your book, public sentiments about police brutality, mass incarceration, and the penal state experienced a major shift away from punitive measures following the police murder of George Floyd on May 25, 2020. Indeed, as street protests ensued, the tenets of police and prison abolition gained currency, although alternatives still needed to be worked out. Be that as it may, the politics of law and order have since returned with a vengeance, as evidenced by the reelection of US President Donald Trump, who ran a campaign based on fear and anxiety. How do we explain this reversal?
David Garland: The plague year of 2020 was an extraordinary time, during which public anxiety and hopes for radical change often coexisted. (During the pandemic, the US created a pop-up European-style welfare state, with stimulus checks for every household; enhanced unemployment, housing, and child-allowance benefits; and massively extended healthcare coverage—only to dismantle it once the crisis had passed.) In retrospect, we can see that the massive street demonstrations that followed the police killing of George Floyd were possible because so many people were no longer at work or in school, making them available to join in the protests. Of course, many Americans were genuinely shocked by the brazen violence and racist disregard for human life that Minneapolis police officer Derek Chauvin displayed. But it is worth remembering, that by 2020, homicide levels and crime rates in general had been falling for more than a decade, relaxing public demands for tough-on-crime policies and enabling activists, such as the Black Lives Matter movement and local groups of abolitionists, to draw public attention to the pathologies of police violence, mass incarceration, and racialized criminal justice.
Democrats need to take the crime problem seriously and offer their own strategies and solutions—not just watered down versions of right-wing bromides.
In general, though, the American public is very conservative on matters of crime control and public safety, and demands for the “abolition” or “defunding” of police and prisons were never liable to have much traction beyond the world of activists, advocates, and academics—even when the liberal media briefly introduced these ideas into the mainstream. And while the life chances of middle-class white people are not normally affected by police violence or harsh prison sentences—in sharp contrast to poor communities of color—they are affected by crime and violence. So when, in the fall of 2020, there were reports of an uptick in shootings and homicides, public support drained away from Black Lives Matter and voters reverted to their long-standing preference for law-and-order candidates—as we saw in the election of Eric Adams to NYC Mayor, in the deselection of several progressive prosecutors, and eventually in the victory of Donald Trump. So the reversal was a political regression to the mean following an extraordinary historic moment.
However, I believe the protests of 2020, and the radical critique of the penal state that accompanied them, have changed the public discourse in important ways, introducing new ideas and radicalizing many young people who form part of the Democratic Party base. My hope is that this new level of concern about penal state repression will be joined with realistic, progressive proposals for dealing with crime and disorder. Democrats need to take the crime problem seriously and offer their own strategies and solutions—not just watered down versions of right-wing bromides. The emphasis should be on non-penal crime-control measures such as situational crime prevention; designing public spaces to make them safer; improving police training and effectiveness; relieving police of tasks for which they are not suited; enabling communities and not-for-profits to launch crime-reduction initiatives; supporting victims to reduce the likelihood of revictimization; and so on. Crime and disorder are real problems for working people; and the victims of homicide and assaults are most often poor and Black. Sustainable reform of the penal state must go hand in hand with effective crime control.
C. J. Polychroniou: What realistic possibilities are available to us for bringing about penal change if we do not first succeed in restructuring the political economy of the United States?
David Garland: To be clear, the outlier status of America’s penal state will persist unless and until the nation’s political economy is transformed. It is that peculiar political economy that makes American violence, policing, and punishment so extreme compared to other affluent nations. However, there is a range—I call it a “bandwidth”—of possible variation within which American crime, policing, and punishment can be changed: a structurally determined floor and ceiling between which lies the possibility of significant reform. That bandwidth of variation is a key part of the theoretical analysis set out in the book, and an empirical fact confirmed by recent developments.
Criminogenic processes and crime control policies are loosely coupled with political economy, not mechanically and directly determined by it. Crime-control policies can be altered, criminogenic processes interrupted, community work activated without any alternation in larger socioeconomic arrangements. For those hoping to bring about penal change, the existence of this relative autonomy is vitally important. It means that even if Nordic or Western European levels remain out of reach, there is nevertheless the real possibility of life-altering improvements in policing, punishment, and public safety.
There is a bandwidth of possibility within which variations in violence levels and penal state policies can occur even in the absence of larger structural change.
We know this because the last few decades have witnessed many instances of significant change. Over the last 20 years, the nation’s imprisonment rates declined from a high point of 765 per 100,000 to a new level closer to 600 per 100,000. Between 1995 and 2020 the nation’s annual homicide rate declined from around 10 murders for every 100,000 people to 5 per 100,000. Shootings of civilians by the New York Police Department (NYPD) dropped dramatically—from an average of 62 people shot and killed each year in the early 1970s to an average of nine per year between 2015 and 2021—after new forms of training, guidelines, and accountability were introduced. The NYPD also reduced its deployment of stop and frisk from over 680,000 per year in 2011 to 11,000 in 2018—the result of a court ruling not a social transformation. Between 1997 and 2023, 2 million formerly incarcerated people regained the right to vote, thanks to campaigns against felon disfranchisement. And since 2000, the imprisonment rate for Black men has fallen by almost half, thanks in large part to the scaling back the war on drugs.
Each of these changes was significant, even radical, affecting the lives of hundreds of thousands and sometimes millions of people. Together, they amount to an empirical demonstration of the book’s theoretical claim that there is a bandwidth of possibility within which variations in violence levels and penal state policies can occur even in the absence of larger structural change.
Nevertheless, the gravitational force exerted by structural arrangements—and the powerful interests that support them—is, in the final analysis, ineluctable. America’s political economy sets definite limits to what can be achieved and imposes upper bounds on what is possible. Until its structures are transformed, America’s penal state will continue to impose a level of punishment and control that has no equivalent in the developed world.
