by Hadar Aviram

In 2009, for the first time in almost forty years, the total number of inmates in the United states declined—a trend that persists since then. Six states have recently abolished the death penalty. Two states have legalized marijuana for recreational use. Prisons are closing down; states are reconsidering their sentencing regimes; old and infirm inmates are experiencing early releases; and politicians of all stripes, for whom appearing “soft on crime” could spell a career disaster are sponsoring bipartisan bills to scale back drug policies. Have we come to the conclusion the the war on crime has failed? And if not, what is going on?

In my book, Cheap on Crime: Recession-Era Politics and the Transformation of American PunishmentI examine the ways in which the Great Recession of 2008 has reshaped the American correctional landscape. The book takes on two opposite predictions: those of Marxist social historians, who believe that hard times would lead to more public punitiveness and oppression aimed at the poor and weak members of society, and those of public choice economists, who would predict that we can only punish as much as we can afford. I come to the conclusion that both predictions are right, and actually not contradictory.

The recession has given rise to a new penological discourse, which I call “humonetarianism”—a set of justifications for non-punitive policies from a perspective of cost and financial prudence. The book examines the footprint of humonetarianism in a variety of correctional areas over the last few years: the transformation of death penalty discourse, away from human rights and racial discrimination concern and toward savings; the Obama administration’s retreat from severe drug policies, accompanied by state and local initiatives to legalize, relax enforcement, cut sentencing, and achieve a truce in the drug way; the way private prison companies and public correctional authorities both respond to a leaner market–by lobbying, negotiating, and diversifying their investment away from domestic inmates and toward undocumented immigrants; and the ways in which humonetarianism has produced a new perception of the offender—less a “ward” of the state and more of a “consumer” of its resources–which leads to special attention to the old and the infirm as well as “pay to stay” regimes that roll the costs of incarceration onto the inmates themselves.

Some of these developments are, indeed, benign, and have achieved reforms that could not be achieved on human rights grounds before the recession; some of them are disconcerting. What’s more, the political enthusiasm for these austerity-driven reforms may wane when the economy improves. The book provides not only an overview of these developments, but also an effort to predict which of them will outlast the economic crisis.

Hadar Aviram is Professor of Law, University of California Hastings College of the Law. She co-chairs the Hastings Institute for Criminal Justice and publishes the California Correctional Crisis blog. Hadar Aviram will present her book, Cheap on Crime: Recession-Era Politics and the Transformation of American Punishment, at ASA on Tuesday, August 19th, from 12:30-2:10, as part of the panel Law in Hard Times: Economic Inequality and the Law.