Penal Populism

John Pratt

• Publisher: Routledge
• Year: 2007
• eBook ISBN: 9781134173280
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Social Policy
• Index: Politics & International Relations

Expertly drawing on international examples and existing literature, Penal Populism closes a gap in the field of criminology. In this fascinating expose of current crime policy John Pratt examines the role played by penal populism on trends in contemporary penal policy.

Penal populism is associated with the public's decline of deference to the criminal justice establishment amidst alarm that crime is out of control. Pratt argues that new media technology is helping to spread national insecurities and politicians are not only encouraging such sentiments but are also being led on by them. Pratt explains it is having most influence in the development of policy on sex offenders, youth crime, persistent criminals and anti-social behaviour.

This topical resource also covers new dimensions of the phenomenon, including:

• the changing nature and structure of the mass media
• less reliance on the more orthodox expertise of civil servants and academics
• limitations to the impact of populism, bureaucratic resistance from judges, lawyers and academics and the restorative justice movement.

This is essential reading for students, researchers and professionals working in criminology and crime policy.

1
WHAT IS PENAL POPULISM?

Despite widespread usage of the term ‘penal populism’ in much analytical work on contemporary punishment, what populism might actually be has to date received very little consideration, as both Sparks (2001) and Matthews (2005) have observed. Instead, it is usually treated as a commonsense given, a label to attach to politicians who devise punitive penal policies that seem to be in any way ‘popular’ with the general public. However, penal populism is both a more complex issue than is acknowledged in those commentaries in which it is seen in this rather limited way; and more structurally embedded, representing a major shift in the configuration of penal power in modern society, rather than something within the purview of politicians to tinker with as they please. This becomes clear when we grasp the sociological significance of populism itself. From there, we can then assess what it is that is specifically populist about penal populism, and consider the implications and consequences that then follow from these identifying parameters.

POPULISM

In one of the first examinations of the term, Shils (1956: 100–1, my italics) observed that ‘populism exists wherever there is an ideology of popular resentment against the order imposed on society by a long established, differential ruling class which is believed to have a monopoly of power, property, breeding and fortune.’ Similarly Canovan (1981: 9, my italics) noted that populism should be understood as a ‘particular kind of political phenomenon where the tensions between the elite and the grass roots loom large.’ What they are saying, then, is that populism represents in various guises the moods, sentiments and voices of significant and distinct segments of the public: not public opinion in general, but instead those segments which feel that they have been ignored by governments, unlike more favoured but less deserving groups; those segments which feel they have been disenfranchised in some way or other by the trajectory of government policy which seems to benefit less worthy others but not them. It speaks specifically for this group who feel they have been ‘left out’ and is thus a reflection of their sense of alienation and dissatisfaction.

By corollary, it also speaks out against those other sectors of society which it judges to have been complicit in allowing this lack of representation to occur, in engineering this marginalization and disenfranchisement of ‘ordinary people’ who have usually made no claims on the state other than to be allowed to live their lives as such. Those thought to be responsible for this are to be found in the government’s own bureaucratic organizations; sometimes the entire parliamentary process which is seen as self-serving rather than public serving; sometimes various elite groups outside of government but which periodically advise it – academics, the judiciary, some sections of the media, all thought to be out of touch with the everyday realities and concerns of the public at large. Taken together, they represent a loose fitting coalition of forces which make up ‘the establishment’. As, such, rather than populism merely being a device to bring political popularity, its central aim is ‘to inject the will of the people into the democratic decision-making process’ (de Raadt et al. 2004: 3), or at least the will of those people whom governments are thought to have previously taken for granted and ignored. To do this, it also has to break down those barriers represented by the establishment that might prevent this from happening.

By the same token, in a bid to re-establish their credentials with this diffuse but voluble constituency, populist politicians in mainstream political parties choose to distance themselves from their own traditional constituencies of support (indeed, these are often turned into implacable enemies) and demonstrate that they are on the side of ‘the people’ rather than vested interest groups within their own parties. In Britain, we saw this in relation to the Conservative Party during the Thatcher era and we have also seen it, from the early 1990s, with New Labour. In both cases, to win over previously unsympathetic sections of the electorate, their leaders spoke of the aspirations of ‘ordinary people’ over the heads of ‘One Nation’ Tory ‘grandees’ in the first example, trade unions in the second.

However, it would also seem that the gulf that has opened up between mainstream politics and this sizeable if diffuse constituency of dissatisfaction and disenchantment can often no longer be bridged simply by representatives of mainstream politics making overtures to it. Instead, this constituency has played an important role in the development of a new politics. We see this reflected in two ways. First, the development of new political parties that are specifically populist, campaigning for election on such matters as immigration and asylum seekers, while often also promising to reduce the size of the state by cutting down the privileges of tax-payer-funded bureaucrats and civil servants. In Western Europe,¹ for example, there has been the rise of the Austrian Freedom Party; in the Netherlands, Lijst Pim Fortuyn; in Denmark, the Danish People’s Party; in Belgium, Vlaams Block; the Swiss People’s Party in Switzerland; New Democracy in Sweden; the Progress Party in Norway. With the exception of these last two examples, which remained peripheral players in their respective body politic (Anderson 1996, Rydgren 2002), these new parties have achieved considerable electoral success, if mercurial and contingent, even being voted into government in the case of the Austrian and Dutch examples, and becoming part of a ruling Conservative coalition in the Danish one. In Australia, there has been the rise of the One Nation Party, with its strong antiimmigration, anti-establishment platform, as with its New Zealand counterpart New Zealand First. While the former enjoyed most of its success at state rather than federal levels of government, the latter has twice been a junior partner in governing coalitions since its formation in 1992. The successes of these new parties can also shift the policy boundaries of mainstream parties. These may be compelled to incorporate some elements of populism to ward off defections to their new rivals.

Second, there has been the growth of more direct democracy initiatives, such as referenda and citizen-based ballots. These are seen as providing the opportunity for more authentic expressions of public will, rather than allowing this to be determined by governments and their advisers. In addition, there has been growing support for electoral systems based on proportional representation rather than ‘first past the post’ winner takes all. This, it is claimed, ensures that parliaments will be more representative of the general public. New Zealand thus changed its electoral process in this way in 1993, as well as introducing provision for non-binding citizens’ initiated referenda at the same time.

The net result of both dimensions of this new politics has been the growth of a much stronger resonance between populist politicians and extra-establishment forces – pressure groups, citizens’ rights advocates, talk-back radio hosts and callers and so on – all of whom claim to speak on behalf of or represent the public at large. Populist politicians look to these groups not only for support, but also for prompts and indicators for policy development and initiatives. In such ways, then, populism has been able to shift the terms of political debate. It has moved away from consensus politics where the values and aspirations of the establishment were of central influence, to a politics that is more divisive and sectarian, but which is also more in tune with the ideas and expectations of the public at large.

PENAL POPULISM

Against this backcloth, penal populism speaks to the way in which criminals and prisoners are thought to have been favoured at the expense of crime victims in particular and the law-abiding public in general. It feeds on expressions of anger, disenchantment and disillusionment with the criminal justice establishment. It holds this responsible for what seems to have been the insidious inversion of commonsensical priorities: protecting the well-being and security of lawabiding ‘ordinary people’, punishing those whose crimes jeopardize this. And as with populism itself, penal populism usually takes the form of ‘feelings and intuitions’ (Sparks 2000) rather than some more quantifiable indicator: for example, expressions of everyday talk between citizens which revolves around concerns and anxieties about crime and disorder (see Taylor 1995, Taylor et al. 1996, Girling et al. 2000); anger and concern about these matters volubly expressed in the media – not simply the national press or broadcasters (many of which are anyway thought to be too closely aligned to the not to be trusted establishment) but the popular press in particular: thus in Britain, The Sun, Daily Mirror and News of the World ‘red top’ newspapers have been used to launch new crime control initiatives by the New Labour Government (see Ryan 2004, Squires and Stephen 2005, Crawford 2006 for examples); and a variety of new information and media outlets which allow the voices of the general public a much more direct airing – local newspapers and news sheets (Taylor 1995), talk-back radio and reality television. At the same time, while penal populism is clearly something more than public opinion per se (Bottoms 1995: 40), it is not averse to using evidence from such surveys to bolster the claims it makes.

Furthermore, penal populism feeds on division and dissent rather than consensus. In these respects, it is as if a huge gulf now exists between the penal expectations of the public at large and the policies and practices of the criminal justice authorities. The focus groups whom Hough (1996: 195) surveyed thought that ‘sentencers were too old, remote and out of touch – “belonging to an elite class”, “from another planet”, “in cloud cuckoo land”, “giving out ridiculous sentences and making ridiculous statements” ’; views which have been subsequently confirmed in British crime surveys (Hough 1998, Mattinson and Mirrlees-Black 2000). In the United States, public confidence in the criminal justice system was third lowest of 14 institutions of government surveyed (Hough and Roberts 2004: 30). Indeed, as penal populism has become more strident, the residual conventions and protocols that had hitherto protected such elite groups from public scrutiny and criticism have been regularly breached. Thus Roberts et al. (2003: 54) note that:

The traditional separation of powers between parliament and the executive and the judiciary that is a hallmark of the Westminster system of government appears to be breaking down . . . The 1990s saw increasing public criticism from populist politicians regarding the courts, tribunals and individual judges.

When penal populism has been influential, though, such developments are to be expected. They become a way of ensuring that policy in this sphere is more reflective of the public will than the values of the criminal justice establishment.

As such, in a defining moment in the development of penal populism in Britain, Home Secretary Michael Howard famously proclaimed in 1993 that ‘prison works: this may mean that more people will go to prison. I do not flinch from that. We shall no longer judge the success of our system of justice by a fall in the prison population’ (quoted by Cavadino and Dignan 2002: 34). Here, he was signalling his intention to reverse the long-held expectations of the penal establishment (Windlesham 1998, Loader 2005) that penal policy must have a reduction of the prison population as its primary purpose, since high levels of imprisonment were ipso facto an unwelcome stain on the texture of any country which professed to belong to the civilized world. In effect, what Howard was saying was that a rise in the prison population would work in so far as criminals would be kept off the streets. He was completely ignoring the well-known argument – at least in establishment circles – that by sending them to prison the vast majority would come out much worse human beings and much more committed to crime. Instead, he was signalling to the general public that their immediate concerns for protection and security were more central to his thinking.

Then, in 1995, in a speech to the Police Superintendents’ Association, he stated that ‘there is still public dismay over sentencing’ (quoted by Dunbar and Langdon 1998: 121). Here was another populist signal. Now sentencing would no longer be allowed to remain the exclusive property of the judiciary with inbuilt inoculation against public scrutiny. Furthermore, this public dismay had to be acted on: if not by the judiciary then by politicians such as himself, who were in tune with rightful public aspirations and who were prepared to put these into law to defeat judicial resistance to them. At that time, such intents fractured whatever consensus may have then been in existence between the government and its senior judges. Whether this was done deliberately, or whether short term political expediency was all Howard was interested in,² without any consideration for the broader consequences, these judges, remarkably, given their own hierarchical and privileged lineage, now found themselves in the position of being some of the strongest critics of Conservative Party penal policy. Hence Lord Chief Justice Taylor’s response to the Conservative Government’s Protecting the Public White Paper (Home Office 1996), designed to put the ‘prison works’ philosophy into strategic effect: ‘I venture to suggest that never in the history of our criminal law have such far reaching proposals been put forward on the strength of such flimsy and dubious evidence’ (House of Lords [1996] 572, col. 1025). In relation to the mandatory sentencing proposals in the same document, Master of the Rolls Lord Donaldson claimed that the White Paper gave ‘a message loud and clear that the judges are not to be trusted’ (ibid., col. 1049). He was right. Howard was indicating that he trusted ‘the people’, not this out of touch elite.

Similarly in New Zealand, the Labour Justice Minister, shortly after his party came to power in 1999, warned judges that they risked losing their discretionary sentencing powers if they did not impose longer prison sentences: ‘public opinion does not take kindly to being ignored, particularly when there is a suspicion it is being dismissed arrogantly’ (The Press 26 February 2000: 1). The Labour Government then set up a Judicial Complaints Process in 2001 ‘to oversee the appointment, monitoring and disciplining of judges. [The Justice Minister] said “a worryingly large number of people no longer have full confidence in the justice system” ’ (The Dominion 26 February 2000: 3). There has since been only one complaint made to it –and that was unsuccessful. However, it had a symbolic rather than strategic importance. It was clearly a gesture from the Labour Government informing judges that they were mere civil servants, not some august body above the rest of the population, and could ultimately be dismissed if the public were not satisfied with their performance.

There have also been regular attacks, usually in the form of moral outrage and condemnation rather than reasoned argument, against those other elite individuals or groups who deign to proffer opinions in conflict with what is thought to be the prevailing mood of the public, or at least perceptions of this. For example, in Australia, a leading article in the Sydney Daily Telegraph (6 September 2002: 6) proclaimed that:

It is no overstatement to suggest that, on sentencing, it has been The People versus The Law Society, the Council for Civil Liberties, a handful of eminent jurists and a few chin-scratchers in tweed jackets from the University of New South Wales.³

No longer regarded as privileged practitioners or commentators in whose expertise lies the answer to crime problems, such elites are seen as standing in the way of the more legitimate demands of the public at large. Similarly, in the immediate aftermath of the New Zealand general election of 2002 where law and order had been a particularly prominent issue, Governor General and former High Court Judge Dame Silvia Cartwright was angrily criticized by prominent opposition MPs when she challenged populist assumptions by making the comment ‘prisons don’t work’ while opening the Crime and Justice Research Centre at Victoria University (Pratt and Clark 2005).

By privileging the penal expectations of the public over those of the criminal justice establishment, it follows that there is a commonsensical anti-intellectual nature to penal populism – in line with what Canovan (1999: 3–5) has described as being one of the attributes of populism in general: ‘in employing a “tabloid” rhetorical style of communication that bears simplicity and directness, populism seeks to step over formal political institutions to become, ultimately, of the people but not of the system.’ In these respects, anecdote and personal experience are better able to convey the authenticity of crime experiences than mere statistics. As a result, populist debate about crime and punishment revolves more around the emotion that such representations invoke rather than rational, considered judgement. Take, for example, the speech made in New Zealand by Dr Don Brash, Leader of the Opposition National Party, when introducing its law and order policy in 2004:

I don’t intend to recite a lot of statistics to make my case. We all know that New Zealand has a terrible record. It is in front of us each day . . . Every day the media carry stories of horrendous crimes – appalling family violence, resulting in death and disfigurement for women and children; random killings by drug-crazed criminals out on parole; brutal muggings of young tourists visiting our country; dangerous and often drunk drivers, many with numerous driving convictions, killing people on the roads.

(Brash 2004: 1, my italics)

The fact that recorded crime had already been in decline in this country for some ten years became irrelevant to his discourse.⁴ Crime levels were to be judged on the basis of ‘what we all know’ rather than any such abstract quantifications. It was this that determined its reality, not statistical detail.

Furthermore, to emphasize the way in which the criminal justice establishment is supposed to have privileged the interests of the criminal over those of victims and the rest of the law-abiding community, victimization assumes an iconic status in populist discourse. As David Garland (2001: 144) has written:

The symbolic figure of the victim has taken on a life of its own, and plays a key role in political and policy argument. The crime victim is no longer represented as an unfortunate citizen who has been on the receiving end of a criminal harm. His or her concerns are no longer subsumed within ‘the public interest’ that guides prosecution and penal decisions. Instead, the crime victim is now, in a certain sense, a representative character whose experience is assumed to be common and collective, rather than individual and atypical.

Indeed, the way in which particular laws have been named after crime victims becomes a way of honouring their loss while also memorializing them through the protection that the legislation they have inspired provides for potential victims in the future. This breaks through the cold anonymity of criminal justice procedure and captures the emotive force that victimization brings with it: the New Jersey Megan’s Law in 1994; the 1994 Jacob Wetterling Act; Jessica’s Law, or the 2005 California Sexual Predator Punishment and Control Act; Christopher’s Law in 2001, more formally known as the Ontario Sex Offender Registry Law; proposals for ‘Sarah’s Law’ in Britain in...

Table of contents

• Cover Page
• PENAL POPULISM
• KEY IDEAS IN CRIMINOLOGY
• Title Page
• Copyright Page
• ACKNOWLEDGEMENTS
• INTRODUCTION
• 1 WHAT IS PENAL POPULISM?
• 2 UNDERLYING CAUSES
• 3 PENAL POPULISM, THE MEDIA AND INFORMATION TECHNOLOGY
• 4 PENAL POPULISM AND CRIME CONTROL
• 5 COMPETING AND COMPLEMENTARY INFLUENCES ON PENAL STRATEGY AND THOUGHT
• 6 IS PENAL POPULISM INEVITABLE?
• NOTES
• BIBLIOGRAPHY