Confronting Penal Excess

Retribution and the Politics of Penal Minimalism

David Hayes

• Publisher: Hart Publishing
• Year: 2019
• ISBN:
  9781509917983
• Edition: 1
• Topic: Derecho
• Subtopic: Sentencias

This monograph considers the correlation between the relative success of retributive penal policies in English-speaking liberal democracies since the 1970s, and the practical evidence of increasingly excessive reliance on the penal State in those jurisdictions. It sets out three key arguments. First, that increasingly excessive conditions in England and Wales over the last three decades represent a failure of retributive theory. Second, that the penal minimalist cause cannot do without retributive proportionality, at least in comparison to the limiting principles espoused by rehabilitation, restorative justice and penal abolitionism. Third, that another retributivism is therefore necessary if we are to confront penal excess. The monograph offers a sketch of this new approach, 'late retributivism', as both a theory of punishment and of minimalist political action, within a democratic society. Centrally, criminal punishment is approached as both a political act and a policy choice. Consequently, penal theorists must take account of contemporary political contexts in designing and advocating for their theories. Although this inquiry focuses primarily on England and Wales, its models of retributivism and of academic contribution to democratic penal policy-making are relevant to other jurisdictions, too.

PART I

Defining Penal Excess

1

Penal Excess and Penal Minimalism

If the criminological literature on punishment over the last few decades is united by one theme, it is that things have gone badly wrong in the criminal justice system, in a number of ways.¹ In this book I argue that a number of the problems identified in the literature can be understood as part of a wider complaint about ‘penal excess’ – that the State is somehow using the penal system too much. To parse the concept of ‘too much’ punishment, however, we need to start with some groundwork, and that is the task of this chapter. Specifically, we must start with a conceptual grounding of the concept of penal excess, compared against the related concepts of penal moderation and penal minimalism. However, conceptual definition can only take us part of the way to a label that is helpful or applicable in the context of actual practices. We must also therefore develop a political grounding for our enquiry. Given the political nature of England and Wales as a (purported) liberal democracy, I argue that we should commit to a rather robust conception of penal minimalism as a public good, on the basis of fundamental liberal and democratic principles. This will imply an equally strict and demanding definition of penal excess. In particular, I advance two spatial metaphors about the penal State (size and shape) which we can then apply to specific phenomena in contemporary Anglo-Welsh criminal justice, in the next chapter.

I.Conceptual Foundations: Penal Excess, Moderation, and Minimalism

This is a book about ‘penal excess’ – excessive use of the penal system. But what exactly does ‘excess’ mean? When will a particular practice become ‘excessive’? We should discuss these conceptual issues at quite a basic level, and in particular, consider how excess relates to the concepts of moderation and minimalism, as a starting point for a more situated analysis. Since an ‘excess’ is something more than necessary, ‘penal excess’ must mean too much punishment. It follows that any definition of penal excess must involve taking a stance on how much punishment is enough. We could speak about this at a micro-level: it is possible to conceive of a single individual receiving too much punishment relative to our purposes in punishing them.² However, we shall see that the problems criminologists identify in relation to what I am calling penal excess are more macro-level; that is, they concern too much reliance on punishment across society as a whole; that we turn to it too quickly and too often, and that this causes a range of problems for society. It should be clear that any conception about this ‘too much’ must be socio-politically situated, because it is closely linked to the specific goals of the penal system, and indeed those of the State more generally. But we can begin to map out its features by comparing it to its conceptual opposites – moderation and minimalism.

Although the concepts of (penal) moderation and minimalism are sometimes used interchangeably,³ their meanings are qualitatively different. Minimalism is about doing strictly no more than is necessary – the bare minimum, and no more. Moderation, by contrast, involves steering a course between extremes – not too much, but also not too little.⁴ Minimalism represents an absolute account of action, in other words, whereas moderation is relative to the extremes being avoided. Moderation is somewhere in ‘the middle’ between too little (a deficiency) and too much (an excess), relative to the possible actions that may be taken. Minimalism, by contrast, is relative to the principles that guide how we should act, ab initio.

In practice, this distinction may not be particularly substantial. For instance, suppose that we have two statements about criminal punishment, A and B. Statement A argues that we should burn anyone who commits a criminal offence at the stake until dead, and Statement B posits that we should never punish anyone for criminal wrongs, under any circumstances. We are unlikely to view a position that falls midway between A and B as ‘moderate’ because we bring our presuppositions and expectations to the table when deciding which political statements are thinkable. Our conception of what is ‘moderate’ is unlikely to fall exactly halfway within the range of all possible responses to a problem, because only some of those responses will be socio-politically and -culturally acceptable in the place and time we are making the relevant decision in. Our frame of reference will not be solely contingent on the outermost extremes of the debate, but also on the particular prejudices, presuppositions, and foundational values we bring to the discussion, individually and as a polity. Moreover, it will rarely be possible to find a mathematically exact midpoint among all possible alternatives relative to one another, because social activity is determined by qualitative as well as quantitative differences that affect the nature of our actions. For example, is the moderate midpoint between Statements A and B above burning half of all criminals to death, burning all criminals halfway to death, or inflicting a punishment of half the severity of execution by burning? Assuming the latter, how do we even begin to identify such a punishment?

I make the distinction between moderation and minimalism because, at least in a penal sense, minimalism is more prescriptive than moderation: it is going absolutely no further than one has to, whereas moderation is the avoidance of excess (and deficiency). Both conceptions are necessarily conditioned by the penal theory that one is pursuing, to say nothing of one’s wider political assumptions. Across penal theory (with the exception of the strongest penal abolitionists, for whom criminal punishment is always unjustified and unjustifiable),⁵ moderation and minimalism offer more and less leeway, respectively, in the pursuit of constrained penal aims. By analogy, imagine the sentencing judge (and the wider architecture of the penal State that backs up their decision-making) as an archer aiming at a target. From the minimalist’s perspective, there is an acceptable zone on and around the bullseye that will indicate ‘success’; for the moderate, that zone is wider. An amateur archer might settle for just hitting the target at all, whereas for the most proficient professionals, only the bullseye will be a satisfying result. In criminal justice, we are unlikely to ever be able to be so accurate, because punishment is a social experience, marked by qualitative as well as quantitative differences. Any metric of penal ‘success’, whether in terms of proportionate punishment or effective interventions, will be reductive to the extent that it insists on mathematical precision, because there is no basis on which to say that a punishment is ‘worth 42 penal units’ – or for that matter, a crime is ‘42% serious’.⁶ These judgements are neither natural nor inevitable, and cannot, for that reason, be specified in advance of a particular penal system or its wider political context.⁷

Indeed, these concepts can only carry us so far, and they still leave us a long way from a practical definition of penal excess. We need more detail about the range of alternatives that are possible, including the political, historical, economic, cultural, and social situation of the criminal justice system in question. What I have argued so far, however, is that moderation and minimalism do reflect subtly but significantly different approaches to the challenge of avoiding excess. If I am going to make out the claim that polities such as England and Wales ought to commit to penal minimalism as a public good, I must therefore explain why moderation is not enough in the context of the (Anglo-Welsh) penal State. To do this, we need to situate our concepts within the particular political context in which England and Wales, as a jurisdictional subset of the wider United Kingdom, operates.

II.Political Foundations: Penal Minimalism as a Public Good

By ‘politics’, I mean the broad set of processes and relationships by which we live together, in everything from small groups to the whole of humanity, on a global scale. Politics is therefore both a normative realm concerning what sort of society we want to live in, and what sort of principles we ought to live by in the abstract (so-called political philosophy); and on the other, a pragmatic realm concerned with how we bring those normative values into play in an imperfect and socioeconomically bounded world. This realm of the socioeconomically possible acts as a medium between abstract political philosophy (the realm of what we want to do) and particular policies (the policy arena being the realm of how the State actually arranges its institutions, systems, and agents, and for which purposes). By exploring these political contexts, we can ground the concept of penal excess in the specific challenges, values, and institutional frameworks of contemporary England and Wales. In particular, I argue that we ought to pursue penal minimalism, rather than mere moderation. This is because of the specific type of political model that prevails in England and Wales, and the wider United Kingdom: liberal democracy.

A.The UK as a Liberal Democracy

‘Liberal democracy’ is an unfashionable concept in contemporary criminology, for two reasons. Firstly, the concept is at least somewhat ahistorical, either because ‘liberal democracies’ have never really existed, or because they did exist but have since been undermined by a more authoritarian and/or anti-democratic direction in (Anglophone) politics. Certainly, the concept of ‘liberal democracy’ does not really appear in normative social, political or legal theory before the mid-twentieth century. ‘Liberal democracy’ was a way of describing ‘the free world’, defined less by what the polities it purported to describe had in common, than by the fact that the States in question were not fascist, and not communist.⁸ Using this concept as if it were an accurate depiction of (say) post-Revolutionary France, the post-independence US, or indeed the post-1832 UK, is inaccurate. It applies a normative framework that the authors of those reformed and/or revolutionary societies were not pursuing, or at least, recasts it in terms of an ahistorical battle with very modern forms of State authoritarianism. Thus, calling a modern State a liberal democracy runs the risk of muddying its historical and modern origins (especially in a non-revolutionary liberal democracy like the UK, which emerged from and still inhabits the institutional, cultural and socio-political bones of its feudal and imperial past). Moreover, the label tells us something about what the State is not, but not a lot about what the State is.⁹

Secondly, speaking about ‘liberal democracy’ risks treating liberalism and democracy as essentially compatible goals, when they may well come into tension.¹⁰ A liberal-democratic State may, without undermining its democratic credentials, pursue non-liberal ends. Indeed, at least some nineteenth-century liberals were very mistrustful of ‘democracy’, which was associated with radical threats to the existing socio-political order and the interests of its elite.¹¹ On the one hand, left-wing influences within liberal-democratic societies may pull the State towards a more int...