Freedom, but at what price?

U. CHICAGO (US) — The United States prizes freedom above all other civic values, but the concept is largely misunderstood by most Americans and is inconsistently applied.

Freedom from government interference is a key tenet of the free market system that the United States champions, but at the same time Americans expect vigorous government action in imprisoning criminals.

The result is a deep inconsistency—even as the United States preaches freedom in the marketplace, it maintains the world’s highest incarceration rate, says Bernard Harcourt, professor of law and criminology and professor of political science at the University of Chicago in a new book, The Illusion of Free Markets: Punishment and the Myth of Natural Order.

“The punitive society we now live in has been made possible by—not caused by, but made possible by—this belief that there is a categorical difference between the free market, where intervention is inappropriate, and the penal sphere, where it is necessary and legitimate,” writes Harcourt.

“This way of thinking makes it easier both to resist government intervention in the marketplace, as well as to embrace the criminalization and punishment of any ‘disorder.'”

The book traces the origins of the separation between economic exchange and the penal sphere back to a mid–18th–century group of French thinkers called the “Physiocrats”—a name meaning “the rule of nature”—who argued that economic exchange needs no outside intervention and that economic transgressions should be severely punished.

In the centuries following, the idea of a free economy paired with an exceptional penal sphere endured, but while these ideas have proliferated in the public imagination, reality is far more complicated, Harcourt says.

In fact, the notions of “natural order,” “free markets,” “regulation,” and “discipline” are mere conceptual tropes.

He uses as examples the hyper–regulated grain market of mid–18th century Paris and a bastion of our modern “free market” — the Chicago Board of Trade.

Upon closer evaluation, he says, neither institution holds up to its labels. The Parisian grain market’s enforced regulations were actually trivial, with the most common violation being the failure to sweep one’s storefront, while the Chicago Board of Trade relies heavily on a complex web of rules about trading hours, price control, surveillance, and computer monitoring.

“There simply is no such thing as a non–regulated market—a market that operates without legal, social, and professional regulation,” Harcourt says. These labels not only are poor mirrors of reality; they also have had devastating effects in the political sphere.

“It is not just that the categories are not useful. They have been affirmatively detrimental,” he writes. “The logic of neoliberal penality has facilitated our punishment practices by weakening any resistance to governmental initiatives in the penal domain because that is where the state may legitimately, competently, and effectively govern.”

The real explosion in the U.S. prison population began around 1973, almost 200 years after the first U.S. penitentiary appeared in Philadelphia in 1790. By 2008, America’s prison population had skyrocketed to 2.3 million people. Even China, with three times the U.S. population, has only 1.5 million people in prison.

Crime was seized as a political platform in the 1960s, Harcourt says, as a way to discredit the civil rights movement and as a wedge issue to dismantle existing welfare programs. The result was a shift toward increased law–and–order measures while established welfare programs were scaled back.

By the 1980s, Ronald Reagan made the case to a sympathetic public that “states would be on more legitimate constitutional grounds and would more effectively “help the poor” by scaling back public assistance programs and expanding the criminal justice system and law enforcement.”

The U.S. public must educate itself against the illusory notion of an unregulated marketplace, Harcourt says.

“This is only a first step. But it is a necessary first step. It will not be possible to break the hold of our excessively punitive carceral state unless we first free ourselves from the very language of free markets.”

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