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Garland’s Law and Order Leviathan: Sources of Moderation Outside the Penal System
Rocío Lorca*
It is not easy to find a book where an exceptionally violent system is described with a sobriety that acknowledges human suffering while at the same time being able to look at it as an object of study rather than of despair. Similarly, it is difficult to find a book about American policing and punishment that recognizes the impact of racism and its brutality but goes beyond it in search of other important driving forces of American penal exceptionalism. David Garland’s Law and Order Leviathan: America’s Extraordinary Regime of Policing and Punishment is that rare book. It gives a very detailed and complex account of how the United States became the world’s foremost outlier in the use of penal institutions as a means of state control, showing a network of institutional, cultural, and economic elements that shape the everyday experience of those processed by criminal law institutions in the United States. This sobriety is also present in the author’s thoughts about the limits and possibilities of American criminal justice. The book shows the many constraints and limits on transformation within this system, yet the picture is saved from being too grim as relevant space for change and improvement is also illuminated. While the book offers little reason for optimism about the future of the country’s extraordinarily violent criminal legal system, it points to concrete, within-reach ways of making things better.
The Grim Description
Throughout, the book confronts the reader with the extremely high levels of violence that characterize the United States’ criminal law system, as well as with the equally high levels of deprivation and precariousness that characterize the lives of the least advantaged in American society. As mentioned above, this is done with a sobriety that helps the reader stay focused on the analysis the author builds from these facts, rather than on their raw brutality.
The reader learns that the United States is not only the developed country with the greatest imprisonment rate by a wide margin, but also that its use of imprisonment is targeted at certain communities, making imprisonment, as the author argues, “a normal life course event for entire demographic groups” (p. 38). American prisons are also particularly violent, and American punishments are saliently severe. But as the author explains, it is not just the size of the penal system or its levels of violence and humiliation that make American penal institutions distinct, but rather the imposition of “penal control” as one specific aim of punishment.
In the author’s view, penal control consists of a series of mechanisms that incapacitate the individual from participating in society. This search for incapacitation, exclusion, and restraint over certain individuals appears at all levels of penal institutions. The author clarifies that penal control is not a means of exacting retribution, since it is not fully governed by a sense of justice or proportionality, nor does it stem exclusively from punitive attitudes. Rather, penal control is a way of compensating for “social control deficits,” which may manifest as criminal deviance but in fact flow from America’s political economy (pp. 49-53).
In terms of political economy, the author shows that the United States has greater levels of economic inequality and labor insecurity, and a weaker welfare system, than the rest of the developed world. In the United States, government functions are often carried out by private actors, there is virtually no labor movement with political power, and political institutions and economic arrangements are highly racialized. All this creates many social problems, making the country rank very poorly in terms of poverty levels and health outcomes, at least in comparison with other developed democracies. However, what sets the United States apart is not just these institutional arrangements and inequalities, but their impact on social disorganization and violence, as well as their impact on the policies that have been adopted to deal with that disorganization and violence.
Garland uses this description of American political economy and its impact on social disorganization to show that the shape of American criminal justice is not so much the product of deliberate decision-making, but of the way in which the structures of its political economy have undermined both social and state capacity, reinforcing indifference and a lack of solidarity among the American people. In other words, institutional, political, and economic constraints limit both the American state’s ability to provide certain goods, and American communities’ ability to provide informal forms of social control. The result is that penal policy ends up compensating for the absence of adequate solutions to all kinds of problems. And it is no wonder that this pushes penal control to become increasingly severe, a severity that is not contained by sentiments of empathy, because America’s political economy has reinforced indifference toward those affected by these policies. This indifference is mediated, of course, by racism, but Garland argues that racism is part of a wider and more basic social fact: low levels of social trust and social solidarity.
Reasons to Be Cautiously Hopeful: The Mediating Elements
Given that the book’s main argument is that American penal institutions, with their particular features, stem from America’s neoliberal or ultraliberal political economy and minimal welfare state, which are structures that are unlikely to change, the account may seem to offer a pessimistic view of the future. However, the book takes time to show that this political economic structure does not directly shape the penal state but its influence is mediated by other factors that contribute to its impact on penal institutions. These mediating elements explain why improvements can be made without completely altering the economic model: there is space for agency and change in the social processes that mediate between the political economy structures and the actual forms of crime, policing and punishment. While this space may not allow for radical transformation, it does allow for valuable positive change.
Having previously been seduced by abolitionist discourses, I find it very important to hold on to this minimalist yet promising space of agency, and to Garland’s insight that “problems that have root cause explanations are not amenable only to root cause solutions” (133). This insight has led me to think that nuanced discourses such as this one, rather than conforming to the status quo, are less paralyzing than the grandiose and hopeful discourses promoted by abolitionism. So while the ideal of prison abolitionism may be more inspiring than Garland’s conclusions in this book, I think this is a work that can guide immediate legal, academic, and political action in a way that abolitionism does not.
Indeed, attending to the structures of political economy and the mediating factors that shape punitive outcomes opens up a valuable line of inquiry into non-penal institutions and practices that might help channel the discourses of law and order currently taking hold across Latin America. I write from Chile, a country with what many call a neoliberal political economy, where most public services are provided by private companies and social welfare largely depends on individual savings accounts. Yet despite this economic structure—and perhaps because we are considerably poorer than the United States—we have retained certain institutions and practices that may function as valuable sources of social solidarity. Public transport, for example, is a fundamental element of Chilean life, and cities are generally designed around it, since until recently only wealthier citizens could afford to own a car and use it daily. We also have a fairly decent public health system, covering roughly 80% of the population. Beyond these institutions, other features—from country size to family culture to religious practice—may also be fostering higher levels of social solidarity. Institutionally, Chile, like other Latin American countries, has a fully autonomous prosecutorial body, one that is highly bureaucratized and considerably harder to control politically than its American counterpart. Our judiciary is likewise a professional bureaucracy in which independence and insulation from electoral politics are primary values. And a national public defense office, which covers around 75% of cases, offers a meaningful counterweight to the prosecutor’s office.
Garland’s book gives us reason to study these institutional, economic, and cultural features more closely—not to celebrate them, but to understand how they might be moderating the levels of violence in our criminal justice system, even as discourses of law and order gain ground. This is not an idealization: Chile’s criminal legal system is highly violent, and becoming more so. But if political economy shapes punitive outcomes only indirectly, mediated by institutions like these, then containment may not require what direct confrontation with penal populism would demand—and is exceedingly unlikely to deliver, given current political preferences. Garland’s framework suggests a more realistic path forward: not defeating punitive politics head-on, but strengthening the very structures that already blunt its force. If Chile’s public transit, health coverage, and institutional design are quietly doing this work, understanding them may be as important as direct legislative battles against the punitive turn.
Questions and Thoughts the Book Ignited
This book raises several interesting questions; for reasons of space, I will focus on a few that are of particular interest to me. First, there is a question about penal control. Garland argues that penal control exists beyond and distinct from retribution. If I understand his argument correctly, unlike retribution, penal control is not confined by the logic of proportionality and just deserts. However, certain aspects of the politics and practices in the United States lead me to question whether retribution and penal control are truly distinct.
Many of the penal control practices described in the book, particularly post-penal sanctions, seem to increase the amount of suffering an individual is thought to deserve and reciprocate their lack of civility. This suggests to me that penal control may also be about giving people their just deserts. Perhaps the American public simply has a very severe notion of what is proportional. Considering American policies in other areas, such as immigration, one might think that what Americans consider proportional simply does not align with European or Latin American sensibilities. This is irrelevant to the book’s central argument, but since penal control seems to play a relevant descriptive function, I wanted to know more about what defines it and whether it is truly distinct from retribution.
Secondly, according to the author, a political economy that fosters individual violence does not negate individual agency. I agree with this approach: a structural explanation of an action is not an excuse or a justification for it. However, I wonder whether the ways in which political economy shapes and contributes to significant levels of violence should give us reason to reconsider our approach to punishment and blame. While Garland has not written a book about criminal blame, his explanations still provide reason to reconsider our understanding of blame in penal practices. This is because, as he himself says, citing Marx, individuals make choices, but “not in conditions of their own choosing”—and the book shows precisely this (p. 86). Criminal law doctrine should draw on these insights to continue constructing more adequate conceptions of culpability and blame—conceptions capable of accommodating the fact that an action, while the expression of someone’s choice, is also chosen within a context that shapes that choice. That context, moreover, is often unfairly imposed on the individual.
Finally, I have a question about the concept of a “developed country” used to compare with the United States and to argue that it is an outlier of a group to which it belongs. While this concept is not developed in the book, I assume the group includes European countries, as well as other developed English-speaking countries such as Canada, Australia, and New Zealand. The concept mixes considerations of wealth, civil rights, and freedoms. However, the more the United States appears to be an outlier within this group, the less it seems to belong to it. It’s not just the penal system that sets it apart: the book shows that there are many other significant differences. Considering the public performance of contemporary American authorities, these differences appear to be growing. Of course, there are fundamental commonalities, and for practical and normative reasons, one may want to avoid affirming that the United States looks like a misfit just because its real peers are elsewhere. Nevertheless, the book left me wondering precisely what the important similarities are between the United States and European countries in order to gain a clearer understanding of the ways in which the former truly stands out from its peers.
* Universidad de Chile (rlorca@derecho.uchile.cl).
Suggested Citation: Rocío Lorca, “Garland’s Law and Order Leviathan: Sources of Moderation Outside the Penal System,” MCLR+ (crimlrev.net) (Aug. 24, 2026) (https://crimlrev.net/2026/08/24/garlands-law-and-order-leviathan-sources-of-moderation-outside-the-penal-system-rocio-lorca/)