Penal Systems

A Comparative Approach

Michael Cavadino,James Dignan

• Editorial: SAGE Publications Ltd
• Año: 2005
• ISBN:
  9781446233948
• Edición: 1
• Categoría: Sciences sociales
• Categoría: Criminologie

?Cavadino and Dignan?s Penal Systems: A Comparative Approach looks across national boundaries to see how penal systems differ and why. It is hands-down the most comprehensive and up-to-date book on the subject and should become a staple textbook for use in law and social science courses on comparative penal policy and practice? - Michael H. Tonry,

University of Minnesota

?This book is an important addition to the literature on punishment. It is a highly readable and very well researched overview of some of the major differences in punitiveness between neo-liberal, corporatist and social democratic countries… This is a major contribution to comparative penology by two of the leading authors in this field? - Alison Liebling, Director of the Prisons Research Centre, UK

?A major and seminal work? - David Downes, Professor Emeritus at the London School of Economics

Penal Systems: A Comparative Approach is a comprehensive and original introduction to the comparative study of punishment.

Analysing twelve countries, Cavadino and Dignan offer an integrated and theoretically rigorous approach to comparative penology. They draw upon material provided by a team of eminent penologists to produce an important and highly readable contribution to scholarship in this area.

Early chapters introduce the reader to comparative penology, set out the theoretical framework and consider whether there is currently a ?global penal crisis?. Each country is then discussed in turn. Chapters on comparative youth justice and the privatization of prisons follow. Comparisons between countries are drawn within each chapter, giving the reader a synoptic and truly comparative vision of penality in different jurisdictions.

Part 1

ABOUT COMPARATIVE PENOLOGY

---

1

Introducing Comparative Penology

This book was largely prompted by the uneasy feeling that understanding the international dimensions of punishment is on the one hand increasingly vital for the student of penology, and on the other hand inherently problematic.

It is increasingly vital for a number of reasons. Firstly, because developments in penal ideas and practices are flitting ever faster around the globe like epidemics of Asian (or more often American) influenza. Whatever one takes to be the nature of ‘globalization’, this is partly because of the accelerating international velocity of both information and people in the late modern age, and partly because of the increasing activity of multinational agencies such as intergovernmental bodies and large capitalist corporations. We need to understand all this if we are to comprehend the directions in which punishment in any country has been developing and is likely to go in the future. And this is the case whether we approve of these trends or not. Comparative study can serve to elucidate which trends are likely to spread pretty well inexorably, because they are linked to other economic and social developments common to many countries, and which ones might fail to catch on, or be successfully resisted. In Part 2, for example, we investigate the apparent absence of a penal crisis centred on a drastically high prison population in countries such as Finland and Japan, contrary to the general picture which has been developing in English-speaking countries and much of the rest of Europe. We need to understand both commonalities and discontinuities between countries, and the reasons for them, if we are to make sense of penality generally, analyse it and engage with it.

Comparative knowledge is not only a requisite in academic discourse, but also in the realm of penal political debate. It is, of course, one of the commonest tricks in the book when advocating or criticizing any social policy to declare (whether accurately or otherwise, but usually in the hope that one’s opponents are insufficiently knowledgeable to contradict you) that they do things so much better/worse in Ruritania. But it remains of real importance to know how they do things elsewhere and what effects different policies do have, even if only for the purpose of participating in arguments about whether ‘three strikes and you’re out’ penalties are efficient in reducing crime in the USA¹ or whether Sweden’s experiences with electronic tagging should encourage us to follow their example. Indeed, the realm of political discourse is more vital than ever. As icy trade winds of punitive law and order ideology seemingly sweep the globe, we need to hold fast to the recognition that things can be done differently to the dictates of the current gurus of penal fashion.

Is comparative penology possible?

But all this is inherently problematic. Is it possible to compare different penal systems at all? How do we begin to think about and explain the differences and similarities which are apparent between penal systems in countries with widely differing cultures, traditions, political and economic systems, histories and crime patterns? Is there even such a thing as a single entity of ‘punishment’ or ‘penality’ that exists in all societies, and if so how is it to be conceptualized? Can any of the existing theoretical frameworks cope with the diversity of penal systems in a wide range of societies?

We discuss some of these deep theoretical issues in due course. But at a less profound level, there are also pervasively knotty methodological problems involved in international comparison-making. Even when dealing with supposedly ‘hard’ statistical data, how sure can we be (for instance) that the meaning of a category such as ‘property offender’ or ‘remand in custody’ is even roughly consistent between countries; let alone that the number of people in each category is computed in a similar manner in different systems? Knowing as we do that practices of recording of crimes and clear-ups can vary alarmingly between adjacent police stations in a single country, the only honest answer is that we can never be at all sure. In many, perhaps most cases we can on the contrary be fairly certain that supposedly comparative figures never really comparing like with like. To some extent these problems are intractable, so that any such statistics in this book must be taken with at least a pinch of low-sodium salt. Nevertheless, if we do not attempt to use too fine a brush, we still think it is valid to point to, for example, the 2002 difference between Finland’s 70 prisoners per 100,000 population with the USA’s 701 (Walmsley, 2003b) as demonstrating some significant discontinuity between penal practices in these two countries.

One particular issue here concerns the standard measure of ‘punitiveness’ that we employed in the previous paragraph. This is the ‘imprisonment rate’ of a country, by which is meant the number of prisoners in a country expressed as a proportion of its total population (usually the number of prisoners per 100,000 general population). It has been argued, most strenuously and cogently by Ken Pease (1991, 1992, 1994), that it is a cardinal error to use this ‘imprisonment rate’ as a general index of how harshly each country punishes offenders. Such a crude measure, Pease argues, ignores vital factors such as differing crime and conviction rates and may severely distort the ways in which countries respond to crime in relation to each other.

We fully accept that ‘imprisonment rate’ is a highly imperfect and in many ways unsatisfactory statistic to use. Unfortunately, it is often the best available. And this is not only because it is the one most commonly and easily calculated and promulgated on a comparative basis. Alternative measures – such as numbers in prison as a proportion of crimes officially recorded, or prison population per number of criminal convictions – might in theory seem preferable, but suffer from their own drawbacks. The official recording of crimes reported to the police is notoriously unreliable and variable even within the same jurisdiction,² let alone across national frontiers; and even before that there is every reason to believe that the proportion of crimes that are reported to the police in the first place is also likely to vary widely. Concentrating on criminal convictions will distort matters because it leads us to ignore the differing ways in which minor offenders in particular are dealt with from country to country. In some countries, police or prosecutors may discontinue cases or in effect levy a fine as a functional equivalent to what elsewhere would result in prosecution, conviction and a lesser court sentence. If so, a ‘prisoners per conviction’ statistic would be likely to make such a country appear much more punitive than it really is, since a much higher proportion of court convictions would lead to prison rather than a minor disposal such as a fine, these lesser cases having been kept out of the court’s caseload in the first place.

Ideally, when we are assessing a country’s relative punitiveness we should try to compare the penalties it inflicts (and the other penal-related and procedural decisions it makes) upon similar offenders at similar stages of the criminal and penal process. Strangely enough, when this has been attempted at the crucial stage of sentencing of offenders convicted of similar offences, the rank ordering of countries’ punitiveness tends to come out looking very much like the ordering produced by the crude ‘imprisonment rate’ statistic (NACRO, 1999; Pease, 1992; cf. Cavadino and Dignan, 2002: 110–11). This suggests – fortunately for our purposes – that with all the caveats issued above, it may be valid to use the imprisonment rate as at least a rough and initial measure with which to compare the punitiveness of countries, or to trace trends in punitiveness in individual jurisdictions over time.

Theorizing comparative penology

Both common sense and rational theorizing suggest that comparative penology is actually possible – although, as we have already indicated, we need to take care when doing it. To begin with, we can validly speak of an entity of ‘punishment’ in any society. It is not necessary to be a thoroughgoing functionalist in social theory to hold that in any human society it must be the case – almost by definition – that there will be deviant actions and that any society will require some system for responding to and sanctioning at least certain kinds of deviance. And this will be the case whether the society is simple or complex, early capitalist or late modern, Western or Eastern, or whatever.³ This is a fairly minimal proposition. It does not mean, for example, that every society needs formal, official punishment institutions regulated by law; so it allows for the existence of non-legal punishment in simple societies and even for possibilities such as the stateless communist society ultimately envisaged by Lenin (1965) in which anti-social acts are prevented by spontaneous informal action by the community. But it does mean that every society needs punishment – or at the very least some functional equivalent – if it is to survive as a society. Societies organized along different lines will diverge to some extent in the social rules that are vital to maintain their diverse social orders, as well as in the precise methods of social control employed. But, as famously argued by H.L.A. Hart (1961: Chapter IX), in any society there must be a ‘minimum content of natural law’, with at least some effective rules governing the use of violence on the one hand and of scarce resources on the other.

We can go further than this. In general, we might expect societies which are similar in other ways – in their economies, cultures, languages and politics – also to resemble each other in penality, although we should perhaps be prepared for a few surprises and anomalies. Thus, for example, we have developed a typology of late-modern capitalist societies (based on that of Esping-Andersen, 1990) to distinguish between the countries in our study and to relate these differences in political economy to penal differences. And we have found in general – to give away and summarize what is perhaps our main finding in this research – that countries with a similar profile in terms of this typology do indeed tend to resemble each other in the penal realm.

In some important respects, all the societies discussed in this book – with the notable exception of Japan – are extremely similar. They are all ‘Western’, developed, industrial democracies (albeit that universal suffrage has of course only just arrived in South Africa, and the Eastern part of Germany only recently joined the club of Western democracy) at the beginning of the twenty-first century. All of them seem to be societies that can be analysed in terms of the ‘radical pluralist’ theory of society, which we sketch out both below and elsewhere (Cavadino and Dignan, 2002: Chapter 3). So it will not be surprising to discover a high level of commonality in punishment among these countries compared with societies of more widely varying types. We should expect this commonality to be pre-existing even before any convergence was brought about by the ‘globalization’ that is generally reckoned to be a special characteristic of the late twentieth and early twenty-first centuries.

This is certainly borne out in respect of the role of the ‘rule of law’ in penality. One unifying dimension of Western democracies is, in the words of our Australian contributor Andrew McLean Williams, ‘the broad acceptance of the law as a mechanism for social ordering and dispute resolution. This applies in both the common law legal tradition, and in countries that have embraced the continental or Roman tradition’.⁴ (Again, the South African case can be seen as something of an exception among our countries, given its extremely partial application of the rule of law doctrine in the apartheid era.) Associated with the rule of law is the still-evolving notion of human rights. It is implausible to see this as a mere accident of juristic or political culture; rather, the rule of law is an inherently desirable quality of the state in developed industrial human societies, necessary for providing a basic level of predictability and efficiency as well as legitimacy. It is a central component in the ‘legal authority’ that Weber (1968) saw as being, for good reasons, the characteristic form of authority in modern Western societies. One might add that much of the juristic and political cogence of individual ‘human rights’ can be seen as deriving from the individualization of culture associated with contemporary consumer capitalism.

Following these considerations further, we should expect the following pattern to be followed – barring the unlikely event of the state ultimately withering away as envisaged by Lenin, or of a Brave New World in which deviance is extirpated by total technological manipulation of the population. All developed societies in the late modern age and hereafter will not only have highly developed legalized systems of punishment, but ones which become increasingly complex, sophisticated and regulated. This would be in line with Weber’s analysis, which suggests that the further development of bureaucracy and legal authority is concomitant with economic change and social modernization. Such changes are likely to happen in the same general direction (if not at an equally even pace) in more or less all the countries under scrutiny. Thus, to take just one example, we find that – unevenly, but pretty well unidirectionally – there is a growing tendency towards managerialism in criminal justice (Cavadino et al., 1999: 41–5, 212–13).

Our conceptualization of this process differs from that of one currently popular school of thought – notably propounded by Jonathan Simon (1993; Feeley and Simon, 1992; Simon and Feeley, 1995), but also by others including our New Zealand contributor John Pratt (2000a). This is the notion that some recent trends in penality (dubbed ‘the new penology’ by Feeley and Simon [1992]) indicate a transition from the ‘modern’ age of punishment into a coming era which some call ‘postmodern’ penality. Features of this new postmodern penology are said to include a burgeoning technocratic managerialism, abandonment of the ‘modernist’ project of diagnosing, treating and rehabilitating individual offenders (‘the collapse of the rehabilitative ideal’ or of ‘penal welfarism’), a shift towards managing and controlling aggregate categories of deviants rather than individuals, a retreat from notions of individual rights, and the adoption of a diverse range of penal techniques both novel (such as electronic tagging) and ‘premodern’ (including informal and restorative justice). And, perhaps more salient than any other recent trend, rising levels of imprisonment in most countries.

While all these trends can indeed be discerned, we think that it adds little coherence to the picture simply to label them all ‘postmodern’ or ‘new’. Along with David Garland (1995, 2001), we think all these developments are more comprehensibly conceptualized as facets of a continuing process of modernization, in line with the Weberian analysis already mentioned. We would prefer to talk, therefore, not of postmodern penality but of a penality of ‘late’ or ‘high’ modernity (Giddens, 1990) – or perhaps even (to borrow a term from an avant-garde school of chess players of the 1920s) hypermodern penality. Increased managerialism clearly fits this analysis; as does the deployment of new technology in the penal realm. More complex, however, is the relationship of modernization to harsher phenomena such as rising levels of punishment, the apparent decline of human rights discourse in the penal realm⁵ and the resurgence of interest in ‘premodern’ modes of punishment.

Relevant here is the typology of ‘penal strategies’ we explained in the Preface: the harshly punitive Strategy A, the managerialist Strategy B an...