The Rise in Penal Populism | Dissertation
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Since the mid-1970s onward, the vast majority of Western countries have experienced a significant plus continual rise in their incarceration rates, leading to the problem of overcrowded prisons. We examine the extent to which the ‘incarceration boom’ of many modern societies can be attributed to the phenomenon of penal populism.
Specifically, we argue that some short-lived actual crime waves during the late 1970s and 1980s may have initially generated a small amount of rational penal populist sentiment among the public, it is the strong divisions within the increasingly heterogeneous public (both politically and ethnically), the central government, and the popular media industry of many democratic developed nations which have ultimately sustained the growth of both penal populism and prison population numbers.
Furthermore, we focus on the types of crime that are most commonly targeted by strong penal populist sentiments in the public and criminal justice system, and suggest that all such categories of crime can be fundamentally linked to the cultural ‘purification’ of children which has taken place in virtually all Western societies during the latter half of the twentieth century. Finally, we consider the limitations of penal populism, referring to those few post-industrial states where such populist punitiveness has been largely resisted, and postulate what the end-stage consequences of a penal populist movement spanning over the past three decades are likely to be.
The term ‘penal populism’ denotes a punitive phenomenon that has become characteristic of many modern industrial societies, especially within Western liberal democracies since the late twentieth century onward, whereby anti-crime political pressure groups, talk-back radio hosts, victim’s rights activists or lobbyists, and others who claim to represent the ‘ordinary public’ have increasingly demanded of their governments that harsher policies and punishments be enforced by the relevant organs of the criminal justice system (e.g. law enforcement agencies, prosecutors, legislators, etc.) in order to combat the perceived rise in serious crime rates (Pratt, 2006).
One direct consequence of the increasingly severe ‘tough on crime’ measures – such as ‘Life means Life’, ‘Three Strikes’, and ‘Zero Tolerance’ policies – exercised in many economically advanced countries from the mid-1970s onward has been an unprecedented rapid rise in the incarceration rates of these respective nations, leading to the problem of overcrowded prisons.
The United States epitomises the tempo of the modern change in national imprisonment rates, and currently has the worst problem of prison overcrowding on a global scale. Indeed, ‘American incarceration numbers [have] increased fivefold between 1973 and 1997’(Caplow and Simon, 1999, p63). More recently, ‘in 2004 the United States surpassed Russia in incarceration rates to become the world leader.
With 2.2 million individuals inside (assuming a U.S. population of 290 million in 2004, that is an incarceration rate of approximately 759 adults in prison per 100,000 residents of the United States) and upwards of 7 million individuals either on parole, probation or awaiting trial, 1 in every 33 people in the U.S. is currently under state control and the number is growing’(State-Wide Harm Reduction Coalition, 2005). Clearly, an interpretation of the widespread incarceration rise must be able to accurately explain its rapidity, extent, and endurance on a global scale.
There are two principal explanations for why such a large number of developed countries have experienced an ‘incarceration boom’ over the past three decades. Both theoretical models assert that it is changes in penal policies plus sentencing practices, rather than simply significant increases in crime rates alone, which are the primary factor responsible for driving prison population growth, but there is considerable disparity between the two theories about the causes of penal policy changes.
One ‘crime wave’ hypothesis posits that actual rising crime rates in many Western countries, including the vast expansion of drug crime during the late twentieth century, have resulted in a greater rational public demand for the criminal justice system to take more severe punitive measures against convicted dangerous criminals (i.e. those offenders who pose the highest threat to public safety and social order; the criminal offenders most commonly targeted by penal populism in modern societies shall be considered in detail below), such as a more frequent use of incarceration with longer custodial sentences.
In contrast, the second ‘political opportunism’ hypothesis suggests that many majority government parties have intentionally overstated the size and severity of the national crime problem in order to heighten public fears or instil ‘moral panic’ over perceived (as opposed to actual) rising crime rates, which are merely a political artefact, and subsequently utilise harsher crime control policies to win electoral favour (Caplow and Simon, 1999).
Importantly, irrespective of which mechanism has in actual fact been operating across numerous advanced industrial states, and has led to the observed excessive growth in prison population sizes, both explanatory models can clearly be regarded as strongly related to the presence of penal populism. The critical difference between the two theories is whether the main original source of those penal populist sentiments can be accurately considered to be the public or the state, or both.
According to the first model, which may be described as the public-induced penal populism hypothesis, it has been the persistent public demand for the government to impose harsher punitive measures on convicted criminals which has primarily caused the fast-paced escalation of incarceration numbers in many modern nations. In other words, the criminal justice systems in these countries have largely been exercising a regime of penal excess because constant pressure from a large sector of the public (in response to an actual rise in crime rates) has compelled them to do so.
In comparison, the second model, which we may refer to as the state-induced penal populism hypothesis, postulates that within many Western countries the government parties in power have often created and sustained an artificial appearance of rising crime rates in order to instil widespread public anxiety. Subsequently, the majority government (and individual politicians) can be observed by the public to be apparently controlling the perceived illusory crime problem, such as through adopting and enforcing ‘tough on crime’ measures, and thereby attain public popularity to secure their party’s (or their own) success in the next general election.
The second model further suggests that the government is not the only state institution in developed nations which benefits from overstating the scale of the dangerous crime threat, but that there are also large rewards for popular media outlets or news companies willing to do so. It is argued by many criminologists that within almost all democratic Western countries, the central government and the popular media, which are both fragmented into multiple competing party’s or companies, are highly dependent on addressing and reporting criminal activity that specifically victimises ‘ordinary people’ in order to retain electoral votes and public ratings, respectively.
Hence, the state-induced penal populism hypothesis proposes that politicians and media outlets lead rather than merely follow or passively represent the public opinion: the public only supports or appears to ‘demand’ the government’s harsher punitive policy strategies because the same national government and popular media industry (as two powerful state institutions) have manufactured a compelling false image of prevalent serious crime which has instilled strong penal populist sentiments in a large proportion of that public.
The central aim of the following examination is to determine which of these two distinctive theoretical positions is most likely to be correct. It is of course possible that the public-induced penal populism mechanism primarily operates in one developed nation, while in another Western country it may be the state-driven penal populism process that is predominant.
However, to the extent that the relatively recent phenomenon of globalisation has resulted in many common economic, social, political, and cultural practices being widely adopted by a number of modern industrial states, one may plausibly expect a similar (if not identical) mechanism of generating penal populism to be present in the developed nations affected by prison population growth, especially with regard to the United States and Western Europe.
At the outset, we may hypothesise that although some short-lived real increases in Western crime rates during the late 1970s and 1980s may have initially triggered some rational penal populist sentiments among the public of these modern societies, it has been the combined interaction of both political opportunism and media opportunism which has acted as a powerful vehicle in numerous modern societies for distorting the public’s common view of the national crime problem, and ultimately for sustaining the growth of both penal populism plus prison populations, regardless of how those crime rates may have subsequently changed (and in most developed countries they have steadily declined).
One fundamental feature of the modern incarceration surge over the past three decades that is observed in virtually all countries affected by rapid prison growth is the significant proportion of these prison populations that has become comprised of racial minorities, including both of resident ethnic groups and of non-citizen illegal immigrants. As one study (O’Donnell, 2004, p262) remarks, ‘one factor that accounts for rising prison populations across Europe is the incarceration of ‘foreigners’. It is likely that prison accommodation in the Republic of Ireland will be used to hold growing numbers of failed asylum seekers, at least pending deportation.
It is also inevitable that the composition of the prison population will change as members of minority groups begin to appear before the courts on criminal charges’. In terms of the racial minorities imprisonment trend in the United States, Caplow and Simon (1999, p66) assert that ‘it is undeniable that the incarcerated population is disproportionately composed of minorities (especially African Americans and Hispanics), and that the disproportion has increased during the period of rising imprisonment...The period of rapid growth in incarceration rates has seen a significant increase in the proportion of minorities in the inmate population, especially among drug offenders, the fastest growing segment of that [prison] population’.
As is the case with most Western European countries, the United States prison sector has also experienced a mass round up of illegal immigrants or non-citizens during the last three decades, who in 2003 made up 40% of federal prisoners (State-Wide Harm Reduction Coalition, 2005). Ultimately, therefore, it is apparent that the incarceration boom in many developed countries has primarily affected various racial minority populations present within these nations. It is the cumulative incarceration of racial minorities that is significantly responsible for the prison overcrowding problem commonly observed.
Thus, one crucial question that we must address in the following study is what has caused (and continues to cause) the increased imprisonment of racial minority populations, relative to the incarceration rate of the racial majority host population (typically white), within the modern industrial societies affected by prison overcrowding? Specifically, we shall seek to determine whether pervasive ‘penal racism’, indicated by a greater tendency in developed nations for both the law enforcement system to arrest and subsequently for the criminal justice system to imprison ethnic or non-white defendants compared with white ones who have committed the same offence, is sufficient to explain the large racial differentials observed in incarceration rates, or not. The methodology of the following study consists entirely of literature-based research and analysis.
2. The Origins of Penal Populism: Real Crime Waves versus Political and Media Opportunism
It is widely acknowledged that the prevalent public sentiment in many developed countries to ‘get tough’ with criminals has played a central role in catalysing the incarceration surge which has occurred in these nations since the mid-1970s onward, an influential social movement that is referred to as penal populism.
Furthermore, whether one regards the source of that penal populism as stemming from a rational public response to actual rising crime rates or, conversely, as triggered by public exposure to political and media manipulation, the measured strength of the public’s demand on their respective democratic governments to impose harsher punitive measures on convicted criminals has remained consistently high over the thirty year period of vast growth in incarceration numbers.
For example, with regard to the United States, one study notes that the time series of public responses to the survey question of whether courts are too lenient has remained highly stable since 1972 (Caplow and Simon, 1999). The significant temporal correlation in many modern industrial states between the onset of strong public desire since around the mid-1970s for more stringent crime policies and the period of rapid prison population growth is a clear indication of the vital part that penal populist sentiments have played in causing prison overcrowding.
One may plausibly argue that the strong growth of penal populist sentiments in most advanced industrial societies over the past three decades has been initially generated by temporary real increases in crime (including the rapid expansion of a drug-crime economy during the 1980s) and sustained by an increased reliance of governments on implementing harsher crime control measures (rather than more effective social welfare policies) to gain public support plus secure electoral favour.
Accordingly, we intend to demonstrate that penal populism in developed nations is a product of both short-lived actual crime waves and manipulative political opportunism. Indeed, one would theoretically expect the two factors operating in conjunction to result in a significantly larger escalation in incarceration rates (as is in fact observed) than would occur if only one of these forces was present in isolation.
As one study has observed, ‘tough on crime’ policies produce prison population increases only to the degree that offenders are available to be imprisoned (Zimring and Hawkins, 1991). Conversely, an increase in crime rates would also not produce a corresponding increase in imprisonment rates unless some suitably punitive crime control measures were in place.
During the last thirty years there has also certainly occurred in many Western countries a greater dependence of competing popular media companies, both television and the press, on selectively reporting dangerous (i.e. worse than normal) crime on an almost daily basis, simply in order to maintain or increase viewer and reader ratings. By portraying the national crime problem as more severe and more prevalent than in reality, individual popular media outlets (e.g. tabloid newspapers) in developed nations have become more appealing to public viewers than their quality media counterparts (e.g. broadsheet newspapers) who often object to distorting or manipulating the reporting of crime news.
Since the late twentieth century onward, crime news has become a fundamental component of the public’s staple diet. As Pratt (2007, p68) suggests, ‘the reporting of crime is inherently able to shock [and] entertain, sustaining public appeal and interest, selling newspapers and increasing television audiences. Furthermore, the way in which crime is used to achieve these ends is by selective rather than comprehensive reporting...However, it is not only that crime reporting has quantitatively increased; there have also been qualitative changes in its reporting: it is prone to focus more extensively on violent and sexual crime than in the past...These qualitative and quantitative changes in crime reporting can be attributed to the growing diversity of news sources and media outlets...As a consequence, both television and the press have to be much more competitive than used to be the case.
Their programmes have to be packaged in such a way that they become more attractive to viewers than those of their rivals and competitors’. Evidently, given that it is typically the most popular newspapers (such as the tabloid press in Britain) which feature the greatest number and severity of crime stories, it means that the most common representations of crime, portrayed in ‘the form of randomised, unpredictable and violent attacks inevitably committed by strangers on ‘ordinary people’, reach the greatest audience’(Pratt, 2007, p70).
Thus, it is clear that within modern society the potential benefits to popular media outlets from inaccurately amplifying the danger plus scale of national crime in the public’s perception are equally as large as the rewards for politicians willing to do so. With regard to addressing the (largely fabricated) immediacy of the criminal activity problem, therefore, media opportunism and political opportunism are proximately linked in virtually all post-industrial countries where penal populist currents are strongly established.
As well as magnifying the size of the dangerous crime problem, the popular media in many Western countries further continually seeks to undermine the current sentencing practices of the criminal justice system, regardless of how harsh they have become over the past three decades. In the same way that the crime stories reported by the popular media are scarcely representative of the actual nature of everyday crime within developed nations, the court stories followed are rarely illustrative of everyday sentencing practices.
According to Pratt (2007), that media misrepresentation then reinforces the common public opinion that courts are too lenient, even though they have become significantly more punitive, in addition to fuelling the widely held public sentiment that the crime rate is constantly escalating when recent statistics indicate that crime is in fact steadily declining in most modern societies. Thus, in its reporting style, crime analysis by the Western popular media has become ‘personalised’ rather than ‘statisticalised’, since:
- 1) it prioritises the experiences of ordinary people (especially crime victims) over expert opinions
- 2) News reports are more prone to focus on the occasional failings of criminal justice officials as opposed to their many successes. Indeed, in the vast majority of modern societies, the ‘citation of criminal statistics has become a code for softness on crime and callousness towards its victims’(Pratt, 2007, p88), which simply provides the popular media with further scope to legitimately overstate the scale and severity of everyday crime in developed states. For these reasons, the media outlets in many Western countries have played a significant role in facilitating the continual growth of penal populist sentiments among the public.
3. The Transient Growth of a Drug-Crime Economy in Developed Countries
It is highly pertinent that the vast expansion in drug crime within many Western nations during the late 1970s and 1980s coincided precisely with the onset of rapidly escalating incarceration rates in these same countries. As is asserted, ‘the growth in nondrug crime has simply not been sufficient to sustain the rapid growth of imprisonment. By the 1970s there was already an active culture of drug use and networks of drug importation/sales in the United States, but their economic importance increased in the 1980s due to new products and distribution strategies, especially for ‘crack’ cocaine. That transformation in the marketing of illegal drugs coincided with political decisions to intensify the punishments for drug crimes. The result was an enlargement of the population available for criminal justice processing’(Caplow and Simon, 1999, p71).
It is crucial to acknowledge, therefore, that in any modern industrial society there is not a rudimentary causal link between a greater public desire for severity in criminal sanctions and a sustained growth in incarceration numbers; other conditions must be present. Specifically, ‘a key condition is a large pool of offenders available to be imprisoned’(Caplow and Simon, 1999, p93). Although there had also been documented transient increases in the number of offenders committing nondrug crimes such as violent crime, property crime (larceny), and sex crime in modern societies during the 1980s, these numbers tended to fluctuate in cycles over time, and could not account for the continual rise in incarceration rates observed.
In contrast, the number of drug crime offences had remained consistently high throughout the 1980s in virtually all developed countries that have experienced an incarceration boom. However, in most Western nations the total drug crime rate then started to steadily decline during the 1990s largely due to the much harsher punishments being imposed on drug crime offenders (both petty and serious) by the criminal justice systems in these states.
One valid explanation for the persistently high rate of drug crime during the 1980s is the ‘economic base’ principle. Specifically, while the average monetary yield of larceny, violence and sex offences is very low, drug crime represents one of the only categories of felony where the potential financial returns are extremely high, and that provides a strong economic incentive for individuals living in poverty. Hence, drug smuggling and trafficking are the only illegal activities capable of providing a solid economic base for a large criminal population in modern society. The initial cost of goods is low and law enforcement efforts sustain high retail prices, thereby ensuring large profit margins (Reuter and Kleiman, 1986).
Since the 1980s, drug crime has certainly been targeted by penal populist sentiments in many Western countries affected by a public expectation for greater punitiveness, largely irrespective of how the drug crime rate has subsequently changed in these developed nations, but it is evidently not the only category of felony that has become a common target of penal populism. Sex offences (especially against children), violent or abusive crimes (once again, even more so when the victims are children), and youth crime are three other important types of crime that in late modern capitalist states have characteristically become subjected to a public desire for penal excess. We shall examine in detail at a later stage below what these specific four categories of crime have in common and why they are such typical targets of penal populist sentiments in developed liberal societies.
4. The Increased Dependence of Governments on Crime Control as a Source of Popular Credibility
The rapid proliferation of drug crime in many Western countries during the late 1970s and 1980s was accompanied by a great loss of public confidence in the social welfare programs implemented in these same nations. As Pratt (2007, p95) asserts, ‘the visible presence of drug addicts in these countries had become a symbol of misplaced welfarism and tolerance, now believed to be corroding their economic and social fabrics’. Furthermore, the short-lived growth of general crime waves in many modern societies during the late twentieth century led to a significant decline of public assurance in the competence of their respective governments to control the state.
As one study remarks, ‘the international crime waves of the 1960s and 1970s helped diminish the prestige of national governments all over the industrial world, by calling into question their capacity to maintain social order. The increase of crime rates at a time of increasing government efforts to help the poor undermined many of the traditional arguments for welfare, and helped confirm the view of many conservatives that efforts to help the poor only made circumstances worse by eliminating incentives for self improvement’(Caplow and Simon, 1999, p88).
It is difficult to determine whether the crime wave was caused by expansions in welfare programs or merely coincided with them. The main point is that in addition to the direct relationship between high rates of crime and demands for punitive governmental responses, the crime wave may have indirectly diminished the prestige of and public demand for welfare-oriented government (Caplow and Simon, 1999).
Thus, it is argued that during the 1980s many Western governments shifted the priority of their domestic agendas away from welfare policies toward crime control policies. Initially, it was most often right wing conservative politicians that promoted ‘tough on crime’ punitive measures, making crime a political issue and gaining public support. However, Lappi-Seppälä (2002, p92) suggests that mainstream opposition (i.e. left wing) parties are then forced into advocating punitive policies as well, because although these left wing parties want to ‘distance themselves from the populist programmes of the right wing movements, there is one area where they do not like to disagree – the requirement of being ‘tough on crime’.
No party seems to be willing to accuse another of exaggeration when it comes to measures against criminality. Being ‘soft on crime’ is an accusation that no [governmental party] wants to accept. And it is that fear of being softer than one’s political opponents which tends to drive politicians, in the end, to the extremes of penal excess’. It is plausible to argue, therefore, that constant competition between opposing governmental factions for public favour in liberal democracies has created an ‘punitive arms race’ of political opportunism, whereby each party is compelled to promote plus (when in power) implement increasingly more radical punitive policies – irrespective of the actual level of crime that the country is experiencing – in order to avoid appearing weak on crime and consequently losing valuable electoral votes to their political opponents who are prepared to be more severe on criminals.
Clearly, such an opportunistic punitive arms race occurring within the governments of developed nations would lead to an exponential increase in the prison population numbers of these countries, and ultimately to prison overcrowding. That political mechanism may at least partly explain why so many Western countries which have experienced a large decrease in crime rates since the mid-1990s and into the early twenty-first century have still reported a rising prison population.
For example, Pratt (2006, p1) observes that since 1999 Labour led coalition governments in New Zealand have strongly adhered to Britain’s New Labour ‘approach to crime and punishment, even using the famous phrase ‘tough on crime, tough on the causes of crime’ in its election manifestoes of 2002 and 2005. As a consequence, while [New Zealand’s] recorded crime rate has dropped by 25% in the last ten years, its imprisonment rate has increased to 189 per 100,000, one of the highest of Western countries’.
Yet it is not only the divisions (i.e. in terms of competing parties) within Western democratic governments that have catalysed the increased political focus on crime control, but also the growing number of divisions among the public itself. Indeed, modern society in many developed nations (such as the United Kingdom and the United States) has become increasingly heterogeneous since the late twentieth century, and consequently the number of bases of division within these societies has expanded.
For example, the members of a diverse post-industrial society are not only partitioned along the traditional parameter of social class, but are also strongly divided by a number of dichotomous value-based issues that are characteristic of ‘post-materialist’ politics such as abortion, gay rights, animal rights (e.g. fox hunting), mass immigration, school prayer, and capital punishment where it still exists (Caplow and Simon, 1999). These value- or identity-based issues are intensely contested over in modern societies by well-organised pressure groups on either side of the bipolar political spectrum. These issues are bipolar or dichotomous in the sense that they are non-negotiable with no ‘middle ground’; one either supports abortion rights or one opposes them.
Hence, public division on these post-materialist issues is inevitable. One important consequence of the heterogeneous publics of Western countries becoming divided by such a multitude of value conflicts during the 1970s onward is that government parties had difficulty finding any issues to build successful election campaigns on that would appeal to a vast majority of the public. Harsher crime control appeared to be a clear choice as a singular issue that large sections of the modern public are united in consensus on. As is stated, ‘Unlike most values issues on the left or right, crime control seems to cut across the political spectrum...Politicians seeking to build viable majorities inevitably turn to the few issues that can bring people together in the new political landscape...That is why election campaigns continue to focus on crime and punishment issues even when opposing candidates agree in their support of punitive anticrime measures.
Faced with voters who split on so many issues and who are profoundly sceptical about the ability of government to improve their lives through welfare-oriented interventions, the mode of governing that commands the broadest support – punitiveness toward criminal offenders – is understandably [valued by governments]’(Caplow and Simon, 1999, p83). Ultimately, therefore, while short-lived actual increases in crime rates during the late 1970s and 1980s may have initially triggered the rise in imprisonment rates in a number of developed countries, political opportunism (in the sense of governments capitalising on populist punitiveness) has arguably sustained the incarceration boom in virtually all Western nations affected by prison overcrowding, regardless of how those crime rates may have subsequently changed.
5. The Target Crimes of Penal Populism
There is a high degree of uniformity across all Western nations that have experienced an incarceration surge over the past three decades in the types of crime that are most commonly subjected to strong public demand for harsh punitive sanctions. Generally, the four most frequent felony targets of penal populism are:
- Drug crime;
- Sex offences, especially when the victims are children;
- Child abuse (physical, sexual, or psychological), and;
- Youth crime.
Correspondingly, these have also been some of the fastest growing segments of prison and boot camp populations in many developed countries during recent years. One fundamental property that the above four categories of crime have in common is that children are extremely vulnerable to the effects of all of them. We may validly question why children have come to occupy such a central place in the penal populist sentiments of modern industrial societies.
Pratt (2007, p96) remarks that ‘crime control policy driven by penal populism targets ‘others’, not ordinary, ‘normal’ people...Given the nature of populism, we should expect that crime control policy will gravitate towards easy and familiar targets, for whom there is likely to be the least public sympathy, the most social distance and the fewest authoritative voices (if any) to speak on their behalf: those who commit sex crimes against children evidently fall into that category’. However, that still does not explain precisely why public reactions against crimes that are perceived to have severe negative effects on children specifically are so strong plus take such priority in all Western countries. Many sociologists have asserted that it is the crimes which are most harmful or disruptive to social order (i.e. to ‘ordinary people’) that one would expect to become the primary targets of public demands for more stringent punitive measures.
Accordingly, Douglas (1966) argues that during the late twentieth century children have become transformed into a symbolic embodiment of moral and social order in virtually all Western post-industrial societies. As Pratt (2007, p100) suggests, ‘Douglas wrote that, in all societies, that which is seen as ‘pure’ not only conveys a sense of order and rightfulness, it also draws attention to the menace of the pollutants to it. Holiness and impurity are at opposite poles...In contrast to earlier periods in the twentieth century, children now seem to have been endowed with these values of innocence and purity.
As a result, those who endanger them come to be seen as the worst type of pollutant, unreservedly justifying all the new penal measures directed at them that go beyond previously permissible levels of punishment in modern democratic societies. We can see that shift in values reflected in changing attitudes towards the sexual abuse or sexual assault of children’. Thus, crimes that principally victimise children represent a threat to the valued moral and social order of modern industrial society, and the portrayal of these crimes in the media consequently leads to an onset of ‘moral panic’.
One clear product of penal populism targeting paedophiles in many Western countries is that sentencing laws and practices for child sex offenders have become increasingly severe over the past three decades, with a number of major developed nations currently adopting a ‘one strike’ policy position. As Pratt (2007, p96) observes, ‘the United States sexual predator laws, prescribing criminal detention followed by civil confinement, are thus justified on the basis that they address the irredeemable menace such criminals are considered to pose...Indeed, all the indications in the United States are that the drive against child sex offenders is becoming more intense and exclusionary, with the adaptation of ‘one strike’ laws in some jurisdictions’.
Similarly, in Britain, the Crime (Sentencing) Act 1997 implemented a ‘two strike’ sentencing practice. However, that sentencing policy has subsequently been repealed by the Criminal Justice Act 2003 which, as with the United States, currently places the punishment of child sex offenders in Britain on a ‘one strike’ basis, with provisions for extended and indeterminate sentences (Pratt, 2007). When the redrafted paedophile sentencing legislation was newly introduced in Britain, it was justified by the New Labour Home Secretary on the basis of a great need in modern society to protect the public from a group of dangerous and severe personality disordered individuals who are neither adequately restrained by the then present criminal law nor by the provisions of the Mental Health Act.
The relative ease with which these harsher sentencing measures against the perpetrators of child abuse have been implemented in numerous post-industrial states may be explained by the fact that the changes in sex criminal sentencing practices were consistently demanded by the public for the benefit of the public, making them an optimal target for populist punitiveness.
Indeed, it is apparent that a significant proportion of the public in many Western countries still consider the new sentencing practices for controlling the child sex offender population to be insufficient; ‘As vigilante attacks in Britain have demonstrated, many people simply want the complete expulsion of these individuals. Their presence in a local community has become intolerable’(Pratt, 2007, p97).
As well as increasing the severity of the punitive measures that can be taken against child sex offenders, the new sentencing laws in many Western countries also change the basic legal terminology used to describe these criminals, largely reflecting the shift in the way the public of modern society has viewed them since the 1970s onward. Hence, ‘special measures to control dangerous sex offenders had been in existence in these and other common law jurisdictions for much of the twentieth century.
However, around 1970, most had been repealed or had fallen into disuse. It had become clear by then that these special powers offended cultural and judicial sensitivities...The term ‘predator’ only entered the United States criminal justice lexicon in 1989 when the first of its sexual predator laws was passed; in Britain the term ‘paedophile’ only assumed similar overtones from 1996.
At the same time, in the new legislation against sex offenders in Britain and the United States, dangerousness has become a much more normalised legal category, rather than one remaining on the periphery of available sanctions, as had always been the case in the past’(Pratt, 2007, p97).
The influence of the popular media in virtually all Western nations affected by penal populism is largely responsible for causing the relatively recent radicalisation in the public’s perception of the modern day child sex offender, specifically regarding their prevalence and the threat which they pose. For example, in 2000, the News of the World (Britain’s most popular Sunday newspaper) instigated a national paedophile ‘naming and shaming’ campaign with the (most likely false) claim that ‘Everyone in Britain has a child sex offender living within one mile of their home’, thereby instilling in a large sector of the public a strong sense of the ‘omnipresence’ of the paedophile problem.
As Pratt (2007, p78) remarks, ‘the distinction between fact and opinion, between public affairs and popular culture, and between news and non-news that was presided over and policed by broadcasting elites has been eroded’. As a result of the media amplifying the prominence of the sex crime problem (and criminal activity generally) in many Western countries, irrespective of its actual distance, it is inevitable that the public in these modern states would believe that the criminal justice system was largely failing to restrain or even monitor the child sex offender population and consequently desire for harsher punitive measures to be taken against the perpetrators of such child abuse.
Such a post-materialist transformation in the symbolic value of children can adequately explain why all four categories of crime above are such frequent targets of penal populist sentiments in Western nations. A number of criminologists have observed that the relationship between drug abuse and child abuse is a very prominent one in many developed countries.
As one study argues, ‘two types of criminality that currently provoke moral panic are drug trafficking and child abuse...Parents have been encouraged to fear that their children may be using drugs with dire consequences that only emerge when a crime or accident takes place (that has in turn led to a market for drug testing)...Because much of the contemporary moral panic about drugs has been about children (crack babies, addicted students), it is linked to another moral panic that has gathered force in the same years concerning the abuse, and especially the sexual abuse, of children...Burglaries and robberies do not easily lend themselves to the metaphors of ritual contamination, but drug trafficking and child abuse carry evocative images of moral depravity’(Caplow and Simon, 1999, p85).
The relatively recent targeting of youth crime by strong penal populist reactions from the public in many Western countries is also proximately connected to the symbolic ‘purification’ of children which has taken place. One may put forward the compelling postulation that criminal children or youths represent a gross symbolic violation of an essential social value in numerous developed nations.
If, in modern societies, children are viewed as symbols of purity and morality then that notion is clearly incompatible with the idea that children can be criminals. As a consequence, Pratt suggests that since the late twentieth century children who do commit crimes in Western post-industrial society are increasingly treated like adults by both the popular media and the criminal justice system (a modern phenomenon known as ‘adultification’), which has significantly amplified the proportion of youth offenders who are given custodial (i.e. prison or boot camp) sentences to serve.
Incarceration provides a clear-cut optimal solution for modern society to separate ‘anomalous’ or ‘defective’ criminal juveniles from the legitimate or ‘normal’ children who embody a standard of purity in the Western cultural system, and thereby preserves the symbolic integrity of that social value. The public of Western society arguably has a strong sense of not wanting criminal children to influence or contaminate ‘normal’ children with their criminality, so these two classes of children must be separated. According to Pratt (2007, p104), ‘in the post-1970s period, juvenile justice policy had been based largely around steering young people away from formal intervention by means of informal warnings and cautions until they effectively ‘grew out of crime’.
However, that trend has been reversed by new policies which have led to the adultification of children and young offenders: rather than allowing them to grow out of crime, it is as if criminality is already irreparably ingrained and has to be sanctioned...Here, then, the barriers that had been steadily set in place over much of the twentieth century to prevent juvenile offenders being further contaminated by any contact with adult penal provisions such as the prison have been increasingly dismantled’. For example, in Britain a number of new legislative measures have been introduced over the past decade to make juvenile offenders ‘more prosecutable and accountable for their crimes – the age of criminal responsibility has been reduced from fourteen to ten in England.
Legislative barriers to keep children and young people out of prisons have also been removed, alongside the introduction of more explicitly punitive sanctions – at a time when, far from a youth crime wave being upon us, offending by young people has been decreasing’(Pratt, 2007, p105). Similarly, in the United States, the military discipline-style boot camp for juvenile offenders has become a corrective institution of considerable public popularity, in stark contrast to the publicly discredited social work authorities of the 1970s and 1980s (e.g. community youth supervision programmes) that were perceived to highlight the general failure of American welfare policies plus merely served to indicate the weakened authority of the state.
One additional reason why youth crime has become such a central aspect of penal populist movements in developed countries is that disruptive youths are responsible for committing a large proportion of the anti-social behaviour or incivilities that afflicts these modern societies. Evidently, such anti-social behaviour reduces the quality of life for ordinary law-abiding citizens, and consequently the public of modern society firmly believes that its majority opinion should take priority over the opinion of the criminal justice system regarding how (plus to what extent) the perpetrators of anti-social behaviour are to be punished. In Britain, Pratt (2007, p118) argues that the New Labour Crime and Disorder Act 1998 plus the Anti-Social Behaviour Act 2003 are exemplars of penal populism, enabling ‘the prosecution of a whole range of ‘incivilities’ as well as minor crime.
A hybrid measure which could be applied to any behaviour, the legislation provides for civil injunctions to be used in the first instance. Thereafter, any breaches of these orders are to be prosecuted through the criminal courts and can lead to a maximum of five years’ imprisonment. In these respects, the anti-social behaviour legislation bypasses seemingly outmoded criminal justice processes. For example, the authorities can now proceed against those under the age of criminal responsibility by making their parents legally responsible for their actions. The new law provides for responses to the kind of behaviour – not necessarily criminal – that was likely to make every day life intolerable – thereby placing the interests of ‘the people’ above those of criminal justice officials’.
Ultimately, one may plausibly argue that the two main categories of crime which have become common targets of penal populist sentiments in many Western countries are: 1) crimes that severely harm children when committed against them, and; 2) crimes committed by children. Only by changing the Western cultural values attached to children in post-industrial society can one seek to weaken the strength of the penal populist notions currently surrounding crimes committed by and against them which are largely responsible for the incarceration surges observed in numerous developed nations.
6. The Disproportionate Representation of Racial Minorities in Western Prison Populations
There is clear evidence that over the past three decades (at least) the penal system in many developed nations has heavily targeted minority ethnic and racial groups, relative to the ethnic majority host population which is most often white. As Tonry (1997, pvii) remarks, ‘members of minority groups are overrepresented among crime victims, arrestees, pre-trial detainees, convicted offenders, and prisoners in every Western country’. It is therefore crucial that we determine whether the incarceration boom in many developed states has been driven to any extent by a form of racial animosity present in the Western criminal justice system.
In general, sociologists have put forward two distinctive explanations for the excessive imprisonment of racial minorities in Western countries. One hypothesis posits that racial minorities are responsible for a larger proportion of criminal activity than the white majority population in these nations, implying that the racial composition of Western prison populations is in balance with the pattern of offending. As one study states, ‘the predominance of African Americans and Hispanics in the correctional population [are considered] as a direct consequence of their disproportionate criminal activity.
Research in the early 1980s indicated that as much as 80 percent of the racial discrepancies in imprisonment rates could be accounted for by the racial distribution of perpetrators in the National Victimisation Surveys. In the 1994 survey, for example, over 50 percent of respondents who had been robbed identified their assailant or assailants as African American’(Caplow and Simon, 1999, p90).
In contrast, the second hypothesis points to the persistent presence of ethnic discrimination in the criminal justice system to explain the significant racial differentials in incarceration rates. For example, with regard to drug crime (which has been an important source of Western prison population growth), it is certainly apparent that in many developed countries the available court punishments for possessing crack cocaine (a more common narcotic of non-white drug users and traffickers) are considerably harsher than those for possessing powder cocaine (a narcotic more typically associated with white drug users and dealers).
There also seems to be governmental resistance in these countries to equalise the custodial sentencing penalties tied to these two drugs, such as ‘in 1995 when Congress rejected the U.S. Sentencing Commission’s recommendation on diminishing the racially sensitive disparity between punishments for possessing crack and possessing powder cocaine’(Caplow and Simon, 1999, p92).
In addition, some criminologists also argue that many police agencies and individual officers in developed nations maintain a historical alacrity for ethnic minority arrests, often for trivial offences. Yet the cumulative impact on an individual’s criminal history of multiple arrests and convictions for minor offences significantly increases the likelihood that eventually they will receive an incarceration sentence. As is suggested, ‘given the undeniable history of discriminatory application of the criminal law to minorities, it is not implausible that some police continue to use arrests against those elements of the population whom they dislike and fear, and for whom little public outcry can be expected.
Even though such trivial offences rarely lead directly to prison, they become part of an offender’s record and raise the odds that subsequent contacts with the police or the courts will lead to harsher treatment. Prior convictions for petty offences can tip sentencing decisions from probation to prison. In the aggregate and over time, a systematic effect of subjecting African Americans to greater scrutiny for minor offences will produce effects in the imprisonment rates’(Caplow and Simon, 1999, p91).
Overall, although it is unlikely that penal racism alone has driven the incarceration surge in Western countries, it is also important to acknowledge that the popular rise of punitive governance cannot be separated from popular racial associations with crime and punishment (Mendelberg, 1997).
7. The Limits of Penal Populism
The critical role played by penal populism in driving excessive prison population growth in many Western countries is highlighted by the fact that the minority of developed nations that have managed to resist penal populist movements have also sustained relatively low incarceration rates throughout the late twentieth and early twenty-first centuries. Hence, although penal populism has become a highly prevalent feature of late modern capitalist society, it is certainly not an inevitable one.
Three Western countries that have remained consistently resistant to the spread of penal populist sentiments, largely due to the presence of differences in social organisation which act as barriers against populist punitiveness, are Canada, Germany, and Finland (Pratt, 2007). Understanding how these three modern industrial states have been able to avoid the problem of overcrowded prisons should further elucidate which factors (social, cultural, political, plus economic) are the most important in causing that same problem within many other developed countries.
For example, with regard to Canada, whose prison population has been in steady decline from a rate of 131 per 100,000 of population in 1995 to 107 in 2003 (contrasted with 738 per 100,000 of population in the United States during 2007), Pratt (2007) suggests that a large part of the reason why Canada has been able to resist populist-oriented penal policy is a strong political determination to avoid the United States prison situation, even though public opinion in Canada is not especially more liberal or tolerant toward crime than in other modern societies where penal populism has established itself.
A key characteristic of all developed nations that have opposed the emergence of penal populism is the presence of a society which strongly values expert-oriented rather than public-oriented crime policy. For example, Pratt (2007, p155) notes that ‘Canadian governments, at least, have faith in their home grown experts and are prepared to look inwards to them to provide solutions to penal problems. That is in contrast to trends in those societies where populism is strong: there, expertise is likely to be downgraded while uninformed public sentiment and opinion are given more weight’.
Similarly, in Germany (which in 2005 had a recorded incarceration rate of 96 per 100,000 of population), ‘during the 1990s, fear of crime was at a relatively low level, while trust in criminal justice organisations was high. That is related to the high level of deference to and respect for criminal justice experts and judges in that country.
German law professors, for example, played a large role in writing that country’s penal code in the 1960s...It is as if judges in countries such as Germany are [publicly] regarded as highly specialised technocrats, needing no obtrusive accountability processes or democratic scrutiny: unlike in the United States where judges, as elected officials, are always accountable to the public and subject to attendant political influences; and unlike other Anglophone (i.e. Western) countries where they are seen as a privileged elite, out of touch with reality and public expectations’(Pratt, 2007, p159).
Finally, in Finland, Lappi-Seppälä (2000, p37) reports that Finnish society is ‘extremely expert-oriented. Reforms have been prepared and conducted by a relatively small group of experts whose [opinion] on crime policy has followed similar lines’. Indeed, the significant decrease in Finnish prison population size over the latter half of the twentieth century, from an incarceration rate of 200 per 100,000 of population in 1950 to 55 per 100,000 in 1998, was largely attained through the expert implementation of strategies which included depenalisation, decriminalisation, and the provision of viable alternatives to custody (Pratt, 2007). Clearly, the popular culture of public deference for criminal justice professionals to manage penal policy development which is present in the above three countries lies in stark contrast to ‘the veneration of ignorance over intellect that is associated with populism’(Pratt, 2007, p163).
As we have observed above, the emergence of penal populism in many developed nations is partly a product of the collapse of public trust or confidence in the ability of welfare-oriented governments to manage the modern state. Accordingly, another fundamental aspect of the three countries that have resisted the onset of populist punitiveness is a sustained public assurance in the effectiveness of government welfare provision. Consequently, there is significantly less public demand for a punitive-oriented mode of governance.
For example, in terms of Canada, Pratt (2007, p157) remarks that ‘the role played by the state in generating a strong civic culture provides another barrier [to penal populism]. Notwithstanding progressive cutbacks from the mid 1980s, social welfare provision seems to have been more extensive than that provided in similar Anglophone countries.
In these respects, the state remains a guarantor of security and stability, avoiding the attendant anxieties that restructuring has caused in other societies, where the state welfare role – but not its penal role – has been restricted and limited...In contrast, the enhanced presence of the Canadian [welfare] state may have led to greater levels of public civility and trust’.
In the same way, for the entire post-war interval Germany has also developed and maintained an extensive welfare state; ‘Based around compulsory social insurance rather than means tested social assistance, it was designed to provide status preservation via earnings related transfer payments.
Provision of that kind is thus likely to have reduced welfare stigma, while at the same time providing an essential guarantee of stability and security. In England, in contrast, means tested welfare was always intended as a way of preventing destitution rather than maintaining living standards. Indeed, it still bears the imprint of the less eligibility principle, introduced by the 1834 Poor Law...In Germany, the post-1945 welfare state was regarded as a nation builder rather than a failure’(Pratt, 2007, p158).
Lastly, Finland has also maintained an inclusive welfare system that strongly contrasts with the United States or United Kingdom welfare systems which are both highly restricted to providing resources only for the poorest sectors of modern society, resulting in the gradual accumulation of national resentment directed toward these economically disadvantaged minorities, who are then also correspondingly viewed as the main perpetrators of criminal activity.
Across most of Scandinavia (including Finland, Denmark, Norway and Sweden), ‘welfare takes the form of universal provision in these countries, rather than serving as a residual safety net...The inclusive model of state welfare provision again provides high levels of stability and security and allows it to act as a shock absorber in times of dramatic social change, without the distrust and lack of faith that it has brought about elsewhere. For example, Finland suffered a deep recession in the early 1990s with unemployment reaching 20 percent, but that made no impact on levels of disorder, inspired no populist resentment against the government nor produced any rises in imprisonment’(Pratt, 2007, p163).
There is also a clear difference in the way that the popular media portrays plus reports crime within the developed countries which have consistently avoided penal populism and its incumbent problem of prison overcrowding. In Canada, Pratt (2007, p158) asserts that ‘the journalistic integrity of its national broadcasting company – the Canadian Broadcasting Corporation – has been largely maintained.
It has thus been able to resist law and order headline-grabbing approaches to reporting and provides opportunities for more informed public debate, instead of endless tabloid television. At the same time, it remains a very popular Canadian institution’.
In comparison, Zedner (1995, p522) reports that ‘in Germany, the mass of traditional crimes which so preoccupy in Britain draw comparatively little media coverage. Crime-related stories occupy much less space in press, radio and television reporting and, as a consequence, attract less political attention and fewer resources’.
Finally, in Finland it appears that the media is also able to contribute to informed public debate and sources of public information are not distorted by popular tabloid reports as they typically are where penal populism persists. As Lappi-Seppälä (2006, p64) notes, ‘the tabloid press in Finland plays a much less influential role in public affairs than in Britain and is less sensational than its equivalent in the other Scandinavian countries. In contrast to the drama of Crimewatch, the Finnish version of Police-TV is more like an education programme with criminal justice officials explaining the contents and functions of the criminal justice system’.
Thus, as a result of the more honest media portrayal of crime in these developed countries, the public is less likely to grossly overestimate their national crime rate and the level of fear of crime will remain low, leading to significantly less public demand for more punitive crime control policies.
However, it seems that the national media has no natural immunity against global currents of penal populism. For example, in Finland, Pratt (2007, p170) asserts that ‘the globalisation of news and information inevitably seeps through the autonomy and insularity of a society such as Finland. The language of populism is known here and the other Scandinavian countries, even if it is not yet widely spoken – certainly not in Finland...That has the potential to make them more accessible to Anglophone culture and values – including its very different approaches to punishment’.
The susceptibility of the popular media to global influences may partly explain why prison populations have started to rise in Finland since the turn of the twenty-first century, from an incarceration rate of 55 prisoners per 100,000 of population in 1998 to 74 in 2005. Yet the continual presence of many cultural barriers against an incarceration surge in Finland accounts for why the increase in Finnish prison population numbers has not been especially large.
Another one of these barriers to the development of penal populist sentiments among the Finnish public and politicians is that, while we have observed above that the modern societies of many Western countries have become increasingly heterogeneous (both ethnically plus politically) over the past three decades, Finland has remained an extremely homogeneous society throughout the late twentieth and early twenty-first centuries. We may plausibly postulate that such sustained low levels of diversity in Finnish society will have suppressed both the onset of penal populism and the rapid rise of incarceration numbers for two main reasons.
Firstly, as a direct consequence of the very low rate of immigration into Finland, there have been no conspicuous ethnic minorities available to be targeted by either police agencies or the penal system (plus to be resented by a large sector of the public), as they have been in many other Western countries that have subsequently experienced an excessive growth in prison population numbers. The clear absence of a base of economically disadvantaged racial minorities in Finland has therefore meant that the country has in large part lacked the ‘scapegoat’ population which has significantly fuelled the incarceration boom in many Western nations over the last thirty years.
Secondly, in such an ethnically and politically homogeneous society as Finland, there is likely to be considerably less public division over a multitude of value- or identity-based political issues, as is the case in many other developed states. As a result of the greater degree of public consensus in Finland, Finnish politicians may be much less inclined to advocate harsher crime control policy in an attempt to build viable political majorities among the public for electoral success.
The Finnish government is instead able to base their electoral campaigns and political agendas on the many welfare issues that are less subjected to public conflict or scrutiny, rather than being compelled to resort to populist punitiveness in order to secure public support. As Pratt (2007, p165) acknowledges, ‘Finland has also been a very homogeneous society: its immigration rate of 2 percent is much lower than the other Scandinavian countries.
That has meant that there are no substantial ethnic minorities at the bottom of every social indicator who then achieve a disproportionate level of representation in prison. Homogeneity also leads to trust and the building of interdependencies. That may then explain why there are such low levels of fear of crime in Finland. Only 4 percent of homes have burglar alarms: that compares with 34 percent in England’.
Paradoxically, it seems that penal populism may eventually lead to the reduction of prison population numbers in the countries where it is currently most prevalent. That is because there are definite ‘natural limits to how far any penal system can accommodate populist demands’(Pratt, 2007, p150). Once populist punitiveness has driven prison populations to their maximum
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