Beyond neoliberalism?

A critical reading of the uses of this concept to think about contemporary

transformations of penality

Jos A. Brandariz-Garca Mximo Sozzo

University of A Coruna, Spain National University of the Litoral, Argentina

1. Introduction. Neo-liberalism as an explaining variable of the rise of punitiveness

This text aims to present a research that Mximo Sozzo, Professor of Criminology at the
National University of the Litoral, Argentina, and I are currently developing, in order to
examine the relationship between neo-liberalism and the rise of punitiveness that many
countries have witnessed over the last decades. At its current stage, the research is still a
work-in-progress. To a great extent, our work is an outcome of the debates on neo-
liberalism, penality, and political economy of punishment aired on two international
conferences organised by Mximo Sozzo and I at the University of A Coruna, Spain, in
2013 and 2014. Moreover, the ongoing research deals with analytical concerns which to
some extent are similar to those recently put by Nicola Lacey (2013).
The topic of our reflection is a well-known academic thesis. The analysis of neo-liberalism
as the key explaining variable of the 'punitive turn' and the rise of punitiveness
experienced in a variety of countries has gained remarkable momentum over the last
decade or so. Undoubtedly, the translation into English of Loc Wacquant's books (2009a,
2009b), which had been published at the beginning of the 2000s, stands out as a major
event of this analytical trend. Not in vain, those books have prompted academic debates
in different academic contexts (Gonzlez Snchez 2012; Malaguti 2012; Squires and Lea
2012; VVAA 2010). Nonetheless, Wacquant's work is just the tip of the iceberg of a
research trend which has taken centre stage in recent years.
Our work on the point intends to carry out two basic tasks. First, we aim to map the
diverse theoretical frameworks which have attempted to examine the rise of punitiveness
from the viewpoint of the emergence and consolidation of neo-liberalism, so as to seek

[1]
both their shared assumptions and especially- their nuances and differences of
perspective. This endeavour entails investigating how those different analytical
frameworks define neo-liberalism (a task in which one may find divergences within the
literature) and how they relate neo-liberalism to penality, that is, how the process
described as neo-liberalism affect punitive discourses and practices. Second, the research
we are currently carrying out poses three different questions in relation to those
analytical frameworks, which intend to investigate to what extent neo-liberalism may
really be a key explaining variable of the punitive turn.

2. Analytical frameworks which connect neo-liberalism with the punitive turn

As has been already mentioned, a variety of theoretical approaches have recently
resorted to the emergence and consolidation of neo-liberalism as the main factor that has
determined the rise of punitiveness.
We may outline some of those theoretical analyses. First, we should consider Wacquant's
work, which describes neo-liberalism as a political project ruled by increasingly
international elites, and which advocates a 'causal and functional' connection with the
punitive turn. Second, the integration of the variable 'neo-liberalism' within complex
analytical frameworks aimed at comparatively explaining the differences of punitiveness
among groupings of countries should also be taken into account in those comparative
analyses neo-liberalism works as the variable which characterises some countries vis--
vis other countries. In this realm, we should mention the work of Michael Cavadino and
James Dignan (2006a, 2006b) and also that of Nicola Lacey (2008). Third, we should
include the literature which examines the evolution of penality in the UK from the
standpoint of the emergence of neo-liberalism, opposing it to a previous pattern of
'social-democratic' penality. In this domain, we should integrate Robert Reiner's texts
(2006, 2007), but also the recent contribution of Emma Bell (2011). Fourth, we must
mention the approaches framed within the Anglo-Saxon development of post-
Foucauldian govermentality studies, which had already begun its development in the
1990s, and which analyse penality from the perspective of the progressive consolidation
of a governmental rationality named 'advanced liberalism'. In this field we should take
into account key authors of the governmentality studies, such as Nikolas Rose (1999,

[2]
2000) and Mitchell Dean (2007, 2010) and especially the work of Pat O'Malley (1998,
2004, 2006). Last but not least, in this summary revision of the literature analysed in our
research, we have to allude to Alessandro De Giorgi's work (2006), which provides a
compelling theoretical framework that connects different intellectual traditions by
investigating the evolution of penality from the viewpoint of the dawning of post-
Fordism, understood both as a production regime and as a key component of a new
technology of power.
This array of texts undoubtedly shares some assumptions. In a nutshell, the majority of
them consider that the emergence and consolidation of neo-liberalism have generated
relevant levels of social exclusion, which are more and more governed through penal
policies especially through imprisonment -, instead of social policies (Dean 2010; Rose
1999; De Giorgi 2006; Wacquant 2009a, 2009b). Furthermore, it is frequently claimed
that an increasingly severe penality is aimed at shaping the willingness of individuals to be
subjected to the precarious working conditions of the neo-liberal regime (Wacquant
2009a, 2009b; see also De Giorgi 2006), and at forming individuals capable of governing
their own lives and managing their own risks, according to a model of 'prudential' subject
which is particularly consistent with a neo-liberal way of thinking (Dean 2010; O'Malley
2004, 2006; Rose 1999, 2000).
Notwithstanding all that, the differences among those analytical frameworks are also
striking. Summarising it, a significant part of that literature reads neo-liberalism not just
as an economic doxa, but also as a social and political model, which transforms the
patterns of production and government and the cultural and social realms (Bell 2011;
Dean 2010; Reiner 2007). By contrast, some texts appear to assume a limited concept of
neo-liberalism, understood as an economic model, and to integrate the notion within
more complex explaining frames, in which neo-liberalism is complemented by other
mainly political variables (Cavadino and Dignan 2006a, 2006b; Lacey 2008, 2013). Yet,
neo-liberalism has also been analysed as a 'political project' which, beyond intellectual
programmes and discourses, has a 'real' content (Wacquant 2009a). Moreover, neo-
liberalism has been read as a governmental rationality, that is, a way of defining what,
why and how should be governed, which is integrated within specific governmental
programmes, frequently through processes of hybridisation (OMalley, 1998, 2004, 2006).

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On the other hand, some analyses deliberately restrict the study of neo-liberalism as am
explaining variable of the punitive turn to certain Anglo-Saxon jurisdictions, whether
focusing on an specific country (Reiner 2007; Bell 2011) or grouping some national cases
in a category opposed to other different categories (Cavadino and Dignan 2006a, 2006b;
Lacey 2008). On the contrary, other texts (Wacquant 2003, 2009a, 2009b) conclude that
the thesis may well be applied to a broad variety of countries, due to the widespread
import of foreign penal discourses and practices enabled by the process of globalisation.
This latter perspective stands as a main research concern of our work.

3. Challenging the neo-liberal penality thesis. General approach

The first question our research poses to the neo-liberal penality thesis is an abstract one
and it focuses on the compatibility between a strong State in the realm of punishment
and the neo-liberal doxa. The majority of the analysed authors claim that a State which is
committed to the rise of punitiveness is a key element of the neo-liberal project (Reiner
2006, 2007; Wacquant 2009a, 2009b). Wacquant's (2009a, 2009b) allusions to the
'prisonfare' regime, to the 'right hand' of the State and to the paternalist and masculinist
traits of the neo-liberal State may be the most suitable references in this regard.
Moreover, this conclusion is shared by a broader literature (Harcourt 2011; Simon 2001).
However, the compatibility between penal expansionism and neo-liberalism is far from
evident. Indeed, some authors contend that the punitive turn and especially mass
incarceration do not seem to be inherent features of the neo-liberal political project. On
the contrary, those penal phenomena could derive from a neo-conservative evolution of
the modes of governing the social (Garland 1996, 1997, 2001; O'Malley 1999; Sparks
2000), which has shaped recent punitive trends, such as 'expressive justice' and 'penal
populism'1. The cleavage between a 'Criminology of the Self' and a 'Criminology of the
Other' coined by David Garland (2001) may well illustrate this analytical perspective2.
This is doubtless a wide-ranging debate, which cannot by any means leave the thesis of
neo-liberal penality untouched. Broadly speaking, it seems far from clear that the socio-
political model which underpins the neo-liberal project is prone to the expansion of State

1
On these punitive trends see Pratt 2007; Tonry 2004.
2
On the point, see also Lynch 2008; Melossi 2008.

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control and to the restriction of civil liberties. Furthermore, some key assumptions of the
neo-liberal governmental model stand at odds with the features of the punitive turn. Just
to mention the most striking point, the huge resources required by mass incarceration
hardly fit in public policies which are aimed at seeking efficiency and at reducing public
spending (Bell 2011; Easton and Piper 2008; Sullivan, 2001).
What this discussion is actually highlighting is that the rationales which guide current
penal policies are complex and to a certain extent even contradictory (Garland 1996,
2001; Loader and Sparks 2007; O'Malley 1999). In fact, the thesis of neo-liberal penality
should probably be reframed in line with Mitchell Dean's claim (2007, 2010), which
qualifies the current governmental model as 'authoritarian (advanced) liberalism'3,
thereby encompassing punitive trends which are hardly compatible with the neo-liberal
paradigm.

4. Challenging the neo-liberal penality thesis. Case study No. 1: The evolution of
penality in South America
The neo-liberal penality thesis should be challenged from specific perspectives, too. In
fact, some current cases evince the conflicting relationship between neo-liberalism and
the rise of punitiveness. Those case studies particularly highlight the epistemological
problems of the literature on neo-liberal penality which overlooks the geographical limits
of its theoretical framework.
The first case study regards the recent evolution of penality in the South American
context. As is widely known, some South American countries (Argentina, Bolivia, Brazil,
Ecuador, Uruguay, and Venezuela) have witnessed since the beginning of the century the
consolidation of governments which, beyond their differences, may well be considered as
examples of a 'New Left' or even of a 'New Socialism' (particularly the political projects
led by Hugo Chvez in Venezuela, Evo Morales in Bolivia, and Rafael Correa in Ecuador). In
stark contrast to this political trend, South American jurisdictions may be regarded as a
good current expression of the rise of punitiveness.

3
On this reflection see also Butler 2004; Iturralde 2010a; Mezzadra and Neilson 2013.

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 1992 1995 1998 2001 2004 2007 2010 2013
Argentina 62 74 88 110 144 133 145 149 (2012)
Bolivia ---- 70 (1996) 76 65 71 80 93 140
Brazil 74 92 102 (1997) 133 183 220 253 274 (2012)
Chile 154 153 179 216 226 282 313 247 (2014)
Colombia 78 90 115 121 159 142 181 240 (2014)
Ecuador 74 85 79 63 88 136 86 173
Paraguay ---- 57 74 75 89 (2003) 99 97 (2009) 136
Peru 69 87 103 102 114 139 154 221 (2014)
Uruguay 100 99 119 154 207 215 257 289
Venezuela 109 (1993) 101 (1996) 95 (1999) 76 (2002) 74 (2005) 85 (2008) ---- 174

Table No. 1: Evolution of prison population rates of the South American countries, 1992-2013
Source: International Centre for Prison Studies (ICPS)

As can be seen in Table 1, the prison population rates of South American countries
tended to rise throughout the 1990s, a period characterised by the neo-liberal hegemony
in the subcontinent. Yet, the increment of prison population rates in some cases was even
higher over the next decade. This evolution has occurred in countries which have
witnessed the consolidation of governments characterised, beyond their differences in
terms of distance from previous neo-liberal economic policies, by a remarkable
investment in social policies, such as Venezuela (since 1999), Brazil (since 2003), Uruguay
(since 2005), Bolivia (since 2006), and Ecuador (since 2007)4.
Therefore, in contrast to Wacquants (2003, 2009a) conclusion, it is highly disputable that
the neo-liberal penality thesis may be capable of explaining the recent evolution of
punishment in South America, at least in certain national cases (see also Lacey 20135). We
still need to develop a theoretical framework which may be suitable to grasping the
peculiarities of penality in that sub-continental context, by taking into account the

4
Venezuelan prison population rate rose by 168% between 1998 and 2013 (Hernndez et al., forthcoming),
that of Brazil by 104% between 2002 and 2012 (Azevedo, forthcoming), that of Bolivia by 94% between
2005 and 2013, and that of Ecuador by 62% between 2006 and 2013 (Paladines, forthcoming). Also the
Uruguayan prison population rate (a 40% between 2004 and 2013) and that of Argentina (a 21% between
2002 and 2012) [Sozzo, forthcoming] have risen over the last decade, albeit less prominently in quantitative
terms. The exception in this point is Chile, which was governed between 2010 and 2014 by a 'New Right'
administration, for the Chilean prison population rate has significantly declined (by 21%) since the
beginning of the current decade. Notwithstanding that, it should be noted that the former rate was
remarkably high.
5
On the contrary, Iturralde 2010b, 2014; Mller 2012, advocate the suitability of the neo-liberal penality
thesis to explaining the recent rise of punitiveness in the South American context.

[6]
situated variables which characterise its singular reality. By contrast, qualifying centre-
left South American governments as neo-liberal does not seem to be a promising path.
Even the most flexible definition of the concept of neo-liberalism would be an inadequate
qualification to apply to administrations which have remarkably reduced economic
inequality in less than ten years6.

5. Challenging the neo-liberal penality thesis. Case study No. 2: The evolution of
penality in the Global North since the onset of the Great Recession
The third question that our research poses to the thesis of neo-liberal penality focuses
also on a case study, related to the evolution of penality in certain jurisdictions of the
Global North since the onset of the Great Recession.
As is widely known, the gravest economic downturn, which has affected the Global North
since 2007-08, has generated most worrying rates of poverty, unemployment and social
exclusion. In contrast to what initially may have been thought of, when several
governments undertook a massive financial intervention to preventing the collapse of the
banking system (Bell 2011; Pitts 2012), the Great Recession has not put an end to neo-
liberalism. From the current perspective, one may hypothesise that in the management of
the crisis neo-liberalism has been replaced by a sort of hyper-neoliberalism. In effect,
the management of the crisis has essentially consisted in a seriously unequal distribution
of the impoverishment, which has led to a salient increase of economic inequality
(Lapavitsas et alii 2012).
According to widespread academic literature (Allen 1996; Arvanites and Defina 2006;
Hale 2009), this kind of social and economic policies should have led to a rise of crime
rates and, what is more important for our purposes, to a rise of punitiveness (Reiner
2007). However, in stark contrast to the South American situation, this has not been the
case (Rosenfeld and Messner 2013).

2007 2008 2009 2010 2011 2012 2013 2014

Cyprus 106 104 111 112 106 108 ----- -----
France 100 104 103 103 111 117 100 102

6
E.g., Argentinean GINI Index was 54.7 in 2003, whilst in 2010 it dropped to 44.5 (Source: World Bank).

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Germany 94 91 89 88 87 85 77 81
Greece 100 110 98 106 110 112 120 -----
Ireland 80 85 88 97 93 94 89 86
Italy 78 96 107 113 111 112 105 90
Portugal 109 101 104 109 120 129 137 139
Spain 147 156 168 161 156 147 146 144
United 145 151 150 152 151 151 147 148
Kingdom
USA 758 756 744 730 716 707 ----- -----

Table No. 2: Evolution of prison population rates of certain countries of the Global North, 2007-2014
Sources: SPACE I, Council of Europe (EU data, 2007-2012); ICPS (EU data, 2013-2014); Sourcebook of
Criminal Justice Statistics and Bureau of Justice Statistics (US data)

As is shown in Table 2, the Great Recession seems to have opened a new phase in the
evolution of prison population rates. Indeed, the almost constant increase of previous
decades has come to a halt, and certain countries have witnessed a significant decrease
of their prison population rates7. Undoubtedly, the most prominent case is that of the US,
since the US criminal justice system has carried out the most expansive experiment of
mass incarceration over the last four decades. Yet, a growing concern about the immense
economic resources required by the rise of punitiveness has recently spread within US
society, and it has fostered the adoption of measures aimed at halting the increase of
prison population (Barker 2009; Simon 2011; Simon and Sparks 2013). A similar trend may
be seen in the UK case (Albertson and Fox 2012; Liebling and Crewe 2013). These are by
no means isolated cases, but instances of a process which is currently spreading across a
range of countries of the Global North, in which the punitive turn becomes more and
more incompatible with the financial austerity ruled by the hyper-neoliberal way of
managing the Great Recession (Brandariz Garca, forthcoming; Karstedt 2013).
To sum up, the neo-liberal penality thesis is also inadequate to grasping the recent
evolution of penality in a multiplicity of jurisdictions of the Global North (Karstedt 2013;
Pitts 2012).

7
Among the countries which have been selected (essentially the US, major EU countries and the European
countries which have been most affected by the Great Recession), remarkable exceptions on this point are
Portugal and Greece.

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 ******

All this ought not to lead us to conclude that the theoretical frameworks of neo-liberal
penality should be drastically abandoned. Those analytical contributions have been
outstandingly useful to understand the evolution of penality over the last decades, and
they should continue to be regarded as insightful theories. Hence, the main
epistemological flaw lies on using them as a sort of grand theory (Wright Mills 1959),
which may be applied anywhere and at any time.
The analysis of penality still demands to consider those contributions, but it also requires
developing more situated theoretical frameworks, which may take into account the
peculiarities of the specific context under study (Lacey 2013; Pitts 2012). Once again, the
epistemological fallacy of acritically translating theories which have been unfolded in
relation to other periods or places should be avoided (Cohen 1988; Melossi, Sozzo and
Sparks 2011; Sozzo 2006). This academic endeavour is as urgent as ever, especially in the
case of researchers who work in places that are located far from the centres of
theoretical production of the Global North.

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