➡︎ read the rest of this Forum
How to Explain an Outlier? Reflections on Law and Order Leviathan
Sara Wakefield*
David Garland’s Law and Order Leviathan (2025) presents a wide-ranging explanation for the uniqueness of the United States with respect to crime and punishment that is focused on its structural conditions; namely, a wealthy country that tolerates high levels of economic insecurity and inequality, a country with vast resources and a paltry welfare state, and a hyper-local criminal legal apparatus that resists change. These conditions are prioritized over competing explanations that emphasize unique aspects of U.S. history with respect to slavery and racism, religious traditions, and often punitive culture.
In this short reflection, I’d first like to say a few words about how I come to Law and Order Leviathan to explain what I appreciate about the book and to raise some questions. Before doing so, however, I’d like to express my appreciation to the Modern Criminal Law Review for its work and in particular the role it plays in bringing together a global network of scholars to engage important new work. For me, the panel discussion online and this review forum represented the all too rare opportunity to participate in a global, comparative, and multi-disciplinary discussion focused on just how truly strange – or in Dr. Garland’s more diplomatic terms, extraordinary – the United States is with respect to its law enforcement regime(s), crime levels, and punishment practices.
***
My research career (as well as that of many others) has been wholly focused on detailing the consequences of mass incarceration as defined by Dr. Garland more than twenty-five years ago. His widely used definition of mass incarceration defined the concept as high levels of incarceration relative to contemporary or historical norms and a level of incarceration that results in the incarceration of whole groups (Garland 2001a). I first encountered this simple and elegant definition early in my graduate training and have been tracking its effects on family life and inequality in the United States ever since. A fair share of this work connects mass incarceration to the maintenance and reproduction of inequality—this is a feature of the United States context that Law and Order Leviathan highlights as critically important. I mention how I come to this work not to highlight my own work but to make a few simple points that address the contributions Dr. Garland makes in Law and Order Leviathan and form the foundation for the questions the work poses for me.
It is worth noting that one can spend the better part of a research career detailing the consequences of mass incarceration for a given domain (family, work, civic engagement, and so forth) without being forced to deeply engage with how this era came to be or what might have caused it. I and many others have done so, and this reflects a mundane aspect of contemporary research. Much as the social science disciplines are siloed, so too is sociological criminology insofar as experts on imprisonment or the demography of crime and punishment need not be policing scholars (or vice versa) and experts on family life need not know much about how labor markets work (or vice versa). That scholars tend to “know a lot about a little” should surprise no one. While Dr. Garland’s accounts of mass incarceration have long influenced me (e.g., Garland 2001b, 2002, 2013, 2023) and many others (e.g., Alexander 2012; Beckett 2018, 1999; Beckett and Francis 2020; Beckett and Murakawa 2012; Beckett and Western 2001; Campbell 2018; Forman 2017; Goodman, Page, and Phelps 2017; Gottschalk 2006; Lacey, Soskice, and Hope 2018; Rubin and Phelps 2017), most scholars of the consequences of mass incarceration in the United States are not also producing theoretical works that attempt to explain its origins.
Tracing these origins turns out to be a very difficult project indeed. A colleague and I were recently asked to review accounts of the “rise of the carceral state” for a journal issue on racial and ethnic bias in the criminal legal system in the United States (Wakefield and Turney 2025). Importantly, neither my colleague nor I had produced theoretical or empirical work explaining the rise of mass incarceration or the carceral state—we instead study the “back end” consequences of mass incarceration for family life and I suspect we were asked to contribute to the issue on this topic mainly because we don’t have a dog in the fight, so to speak. We spent more than a year wrestling with various attempts to explain why the United States turned into what Dr. Garland describes in Law and Order Leviathan: a wealthy nation that, relative to its peers, is characterized by extremely high crime rates accompanied by a massive and repressive punishment regime that touches an extraordinary number of Americans. Dr. Garland’s body of work played a large role in this exercise, though Law and Order Leviathan had not yet been published. The main lesson I drew from that exercise is that while detailing the consequences of mass incarceration in the United States for a variety of social outcomes is not easy—one must overcome major issues of selection bias, data availability, and the other usual problems that plague causal social science research—it is surely much easier than explaining why mass incarceration, or more accurately mass criminalization, emerged in the first place, why its form is so extreme in the United States, and what could possibly be done about it.
This first lesson prompted another. The literature on the mass incarceration era in the United States is massive with respect to its consequences and relatively thin with respect to its causes. Scholars have documented impacts in every social domain one could dream up—from the labor market to family life to civic engagement and so on. Though a massive and multi-disciplinary field, there is widespread agreement on the scope conditions of our scholarly projects. Importantly, the effects of the “thing” we are studying was formally defined by David Garland long ago, as noted earlier, and thus the scope conditions are widely understood. All of this leads to a literature that documents widespread harms and inefficiencies. Importantly, it has also led to a literature that has often ignored high levels of crime in the United States and offers little insight on how change might be accomplished.
***
This background leads me to the strengths of Law and Order Leviathan and the questions I hope Dr. Garland might speak to in future work.
First, I deeply appreciate the careful attention to both crime and punishment apparent in the book. Crime, though currently declining, is high in the United States relative to other comparable nations and appears to be especially lethal. Crime is also highly politicized, with the average American having no sense of whether crime is high or low in any given year or place. This is a both/and problem, not an either/or debate. While the book recognizes the high crime rates in the United States—both with respect to civilians and with respect to the high rate of police killings—I was less certain about the ways in which Dr. Garland might suggest we tackle this problem. Much of the back end of the book highlights the importance of developing a greater sense of community solidarity and connection – but I wonder how such a thing can be accomplished in a nation with substantially more guns than people.
Second, when does history begin? Law and Order Leviathan, like many other works in this field, situates the current state of affairs largely in the social upheavals of the 1960s and 70s. By contrast, several accounts go back further, some by more than a century (e.g., Hinton and Cook 2021; Muhammad 2019; Murakawa 2019). They unsurprisingly place a much greater emphasis on legacies of slavery and contemporary racism, which is not to suggest that Dr. Garland’s body of work is inattentive to the idea that, in his own words in an earlier work, American criminal justice “operates in a miasma of Anti-Black racism” (Garland 2023, 50).
I am less concerned with whether a history of slavery or contemporary racism are necessary or sufficient conditions for the operation of criminal justice today and more curious about how contemporary racism (structural or otherwise) sets a ceiling on what can be accomplished with respect to change. For instance, as I read Law and Order Leviathan, I wondered whether the political economy is easier to change than racism, an entrenched punitive culture, high levels of political polarization and community disengagement, and, most broadly, the strong sense that Americans appear uniquely willing to give up something for themselves so long as those they view as less deserving get nothing as well.
Finally, Law and Order Leviathan raises questions about what sorts of comparative projects should be viewed as especially fruitful tests for the arguments set forth in the book. For example, the book makes an especially compelling case for comparative projects and I strongly agree. I am deeply frustrated with a research literature that insists that we draw generalizable conclusions about crime and punishment from the strangest context across the globe. But what should come next and what places might serve as useful comparisons? As one example, the comparative emphasis in Law and Order Leviathan is made with respect to the usual suspects, that of other wealthy democratic nations—places like the Nordic countries, the UK, Canada, Australia, and so forth. But what, if anything, can be learned by changing the comparator groups? Is it useful, for example, to look to places in the Global South to push our thinking? Relatedly, does looking back in our own history offer purchase for useful empirical tests? It has become fashionable of late to point to the operation of prisons in places like Norway as an argument for reform, but what of US-based prisons in the 1950s? Finally, to the extent that the intersection of state capacity pressures and what one might broadly term tribalism drive much of the narrative of Law and Order Leviathan, would it be useful to track closely how European countries are behaving today in response to widespread changes in migration patterns and heated debates about immigration in places like the Netherlands, Denmark, the UK, Germany, and the like?
These questions are offered less as a critique of Law and Order Levithan and more as a reflection of my hope that more work along these lines is coming. This book, like Dr. Garland’s others, has the capacity to change my mind but, more importantly in a time of pessimism, it also gets me excited about what comes next.
References
Alexander, Michelle. 2012. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: The New Press.
Beckett, Katherine. 1999. Making Crime Pay: Law and Order in Contemporary American Politics. Revised edition. New York: Oxford University Press.
———. 2018. “The Politics, Prospects, and Perils of Criminal Justice Reform in an Era of Mass Incarceration.” Annual Review of Criminology 1: 235–59.
Beckett, Katherine, and Megan Ming Francis. 2020. “The Origins of Mass Incarceration: The Racial Politics of Crime and Punishment in the Post–Civil Rights Era.” Annual Review of Law and Social Science 16 (1): 433–52. doi:10.1146/annurev-lawsocsci-110819-100304.
Beckett, Katherine, and Naomi Murakawa. 2012. “Mapping the Shadow Carceral State: Toward an Institutionally Capacious Approach to Punishment.” Theoretical Criminology 16 (2). SAGE Publications Ltd: 221–44. doi:10.1177/1362480612442113.
Beckett, Katherine, and Bruce Western. 2001. “Governing Social Marginality: Welfare, Incarceration, and the Transformation of State Policy.” Punishment & Society 3. doi:10.1177/14624740122228249.
Campbell, Michael C. 2018. “Varieties of Mass Incarceration: What We Learn From State Histories.” Annual Review of Criminology 1 (1): 219–34. doi:10.1146/annurev-criminol-032317-091957.
Forman, James. 2017. Locking Up Our Own: Crime and Punishment in Black America. New York, NY: Farrar, Straus and Giroux.
Garland, David. 2001a. Mass Imprisonment: Social Causes and Consequences. Thousand Oaks, CA: SAGE Publications Ltd.
———. 2001b. “The Meaning of Mass Imprisonment.” Punishment & Society 3: 5–7.
———. 2002. The Culture of Control: Crime and Social Order in Contemporary Society. Chicago, IL: University of Chicago Press. https://press.uchicago.edu/ucp/books/book/chicago/C/bo4092002.html.
———. 2013. “Penality and the Penal State.” Criminology 51 (3): 475–517. doi:10.1111/1745-9125.12015.
———. 2023. “The Current Crisis of American Criminal Justice: A Structural Analysis.” Annual Review of Criminology 6 (1): 43–63. doi:10.1146/annurev-criminol-030722-035139.
———. 2025. Law and Order Leviathan: America’s Extraordinary Regime of Policing and Punishment. Princeton, NJ: Princeton University Press.
Goodman, Philip, Joshua Page, and Michelle Phelps. 2017. Breaking the Pendulum: The Long Struggle Over Criminal Justice. Oxford, New York: Oxford University Press.
Gottschalk, Marie. 2006. The Prison and the Gallows: The Politics of Mass Incarceration in America. Cambridge Studies in Criminology. Cambridge: Cambridge University Press. doi:10.1017/CBO9780511791093.
Hinton, Elizabeth, and DeAnza Cook. 2021. “The Mass Criminalization of Black Americans: A Historical Overview.” Annual Review of Criminology 4 (1): 261–86. doi:10.1146/annurev-criminol-060520-033306.
Lacey, Nicola, David Soskice, and David Hope. 2018. “Understanding the Determinants of Penal Policy: Crime, Culture, and Comparative Political Economy.” Annual Review of Criminology 1: 195–217.
Muhammad, Khalil Gibran. 2019. The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America, With a New Preface. 2nd edition. Harvard University Press.
Murakawa, Naomi. 2019. “Racial Innocence: Law, Social Science, and the Unknowing of Racism in the US Carceral State.” Annual Review of Law and Social Science 15 (1): 473–93. doi:10.1146/annurev-lawsocsci-101518-042649.
Rubin, Ashley, and Michelle S Phelps. 2017. “Fracturing the Penal State: State Actors and the Role of Conflict in Penal Change.” Theoretical Criminology 21 (4). SAGE Publications Ltd: 422–40. doi:10.1177/1362480617724829.
Wakefield, Sara, and Kristin Turney. 2025. “The Rise of the Carceral State: Foundations and Contours of a Rapidly Changing Criminal Legal System.” RSF: The Russell Sage Foundation Journal of the Social Sciences 11 (3): 136–73. doi:10.7758/RSF.2025.11.3.04.
* Professor, School of Criminal Justice, Rutgers University, Newark (sara.wakefield@rutgers.edu).
Suggested Citation: Sara Wakefield, “How to Explain an Outlier? Reflections on Law and Order Leviathan,” MCLR+ (crimlrev.net) (Aug. 24, 2026)