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On the 20th of July 2006, the Home Office released a report entitled Rebalancing the Criminal Justice in Favour of the Law Abiding Majority, containing plans and proposals for action to achieve a fair and truly rebalanced criminal justice system. It was that document, it could be argued that marked the split between the 1960's liberal social consensus on law and order, and New Labour's governing through crime approach. This review of the 2006 Home Office document and the 2010 Ministry of Justice publication is going to argue, that the new New Labour has in fact adopted populist punitiveness in order to gain political advantage, and demonstrate the Coalition Government's reversal of that approach. Furthermore, by looking at the policies and proposals outlined in Braking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders document, I am going to conceptualise some of the theoretical material behind what can arguably be labelled the most exciting proposal set out by the Coalition Government- payment by results.
Keywords: Populist punitiveness, Home Office 2006, punishment, Coalition Government, payment by results, rehabilitation
In much of the recent work examining the politics of criminal justice, Labour has been criticised for its willingness to embrace populist punitiveness. This is evident in their punitive stance on crime and criminal justice in the run up to the successful election of 1997, and throughout their leadership. In fact following the dramatic events of 1993; the abduction and murder of James Bolger, the Labour Party "have embraced policies and principles associated with neo- liberal rather than social democracy, of the Right rather than the Left" (Downes, Morgan, 2007:210), and set out to out tough the oppositions policies on law and order, whilst claiming that they are merely doing what the public wants. Their most famous manifesto 'tough on crime, tough on the causes of crime' perfectly captures the shifting stance of the Labour Party into the new bipartisan consensus with their opposition, and the beginning of the New Labour, whom "claim to be (only) defending the popular interests of its electorate, such assertions being most clearly illustrated by its professed claims to be 're- balancing' the criminal justice system in favour of 'the law- abiding majority" (Bell, 2007:54). What Labour is being accused of therefore, is it's trail of harsh and punitive penal policies aimed above all, at winning votes rather than reducing crime and promoting justice. It is therefore essential to understand the concept of penal populism, in order to grasp it's hold over Labour's policy development.
Understanding the Concept
The original and very influencial concept of populist punitiveness, which has led to much work being done into what was later referred to as penal populism, was first coined by Anthony Bottoms (1995). He identified it as one of the themes he considered to be "of special importance in much recent change in criminal- justice systems", along with just deserts, managerialism and community (as cited by Garside, 2007:1). It served to "convey the notion of politicians tapping into, and using for their own purposes, what they believe to be the public's generally punitive stance" (Bottoms, 1995, as cited by Garside, 2007:1), and was explained in context of the rise of individualism, technological innovation and globalisation (Garside, 2007:2).
However, in his book Penal Populism (2007), John Pratt argues that although there has been much work done into contemporary punishment following Bottoms' findings, little attention has been given to what penal populism actually means, he argues that penal populism 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'", rather than "a more complex issue (...) representing a major shift in the configuration of penal power (...) not something within the purview of politicians to tinker with as they please" (p.8)
By analysing work of Canovan (1981) and Shils (1956) he argues that populism represents voices and sentiments of those who feel they have been ignored by governments, rather than public opinion in general, and speaks out against bureaucratic organisations, who have allowed for this marginalization of ordinary people to occur (p.9). Therefore, rather than populism being solely a tool used for political popularity, it should be seen "as way of advancing more progressive, liberal penal politics" (Bell, 2007:44). Furthermore, what Ryan (2005) suggests is that penal populism should not be confused with the positive "rise of the public voice" which may not necessarily be at all punitive (as cited by Bell, 2004:44), as the negative use of the term may serve as a way of de-legitimising its advocates (Collovald, 2004 as cited by Bell, 2004:45). Penal populism however, as Pratt (2007) argues "feeds on expressions of anger, disenchantment and disillusionment with the criminal justice establishment" of the previously silent majority, who believe that criminals have been favoured by it, at the expense of crime victims and law abiding community (p.12), making public opinion easy to exploit in order to gain political popularity.
New Labour: Party of Law and Order
When talking about penal populism, it is impossible not to mention the phenomenon explaining the powerful relationship between the public and politicians, referred to by Pratt (2007) as the new axis of penal power (p.24).
Pratt argues that it describes the new ways in which the public can now get involved in policy making rather than just being 'dummy players' (2007:32), with law and order issues now being central to both public and political debate, not discussed and decided on by the elites behind closed doors.
This reconfiguration of the power to punish is evident in the Home Office Review (2006), where the Government numerously talks about "public that is clear about what they expect" , and is planning on "giving the law abiding public much greater involvement in the criminal justice services"(p.13). The government urges those representing the public, to share and consult their views on the proposals set out in the report, concerning issues such as reforming police forces, giving courts new powers to extend sentences and helping to decide on what new powers to employ to cut low level crime and anti- social behaviour (p.48). It not only imposes a duty on communities to participate in crime reduction, but also in creation of safer communities (Matthews, 2005:191). Furthermore, the tone and the use of language clearly conveys the notion of the need for partnership working in order to tackle and effectively respond to crime problems. The use of phrases such as "the criminal justice system concerns us all" directs the issue and responsibility of crime towards the community and the use of an emotive language leads to loss of empathy with the offenders.
Another significant aspect when exploring New Labour's populist punitiveness, is the focus on the victims of crime. Following the 1960s, the victim movement has become progressively significant and organised, eventually transforming the criminal justice system dialogue to one that centres the victim's perspective (Hoyle, Zedner, 2007:473). The views of the victims of crimes, and opinions of those who have been affected by their emotive experiences are now more likely to out weight the opinions of the elites or the experts (Pratt, 2007). The victim approach is evident in the Home Office Report, in initiatives such as Community Payback, or the Youth Offending Panels, which enable the ordinary people to choose what unpaid work offenders do (p.6), and in the emotive language it uses to convey those ideas. It is the government's aim to "to adress the wider perception that the criminal justice system (...) is distant from the communities who are most likely to be victims of crime" (p.21). It also talks about introducing a Victim's Voice in the most serious cases, increasing the compensation that offenders pay, as well as ensuring that all members of parole board panels have direct or indirect experience of being a victim of crime (p.15).
The new reconfiguration of the penal power also means, that the measures being imposed are increasingly more punitive, making imprisonment rates a prominent feature of penal populism (Pratt, 2007). In the report Labour demonstrates this need to increase the severity of punishment. Some of it's proposals include an increase of the maximum penalty for carrying a knife, building an additional 8, 000 prison places and introducing Violent Offender Orders, which are going to provide courts with tougher measures to manage offenders beyond the period of their sentence. The increase of the drastic punishment is also evident in the response to anti- social behaviour. The 1998 ASBO legislation is a civil matter, but as a result of non compliance, has a criminal respose (Morgan, Newburn, 2007: 1038) and is stil very much a leading component of the government's way of dealing with young people's behaviour. The Labour's plans for swifter return of those who breach bail to court, giving new powers to the courts to keep those offenders remanded and giving probation powers to vary the punishment an offender serves, depending on their behaviour, without having to go back to court (p.20) are only some of the ways in which the government is 'widening the nets'.
Politicians do like to suggest that those punitive measures are however only reflecting the shifts in public opinion, where in fact academic research, such as that conducted by Beckett, (1997) points to a more complex picture (as cited in Howard League, 2007). For many people mass media is the only source of knowledge on crime and punishment (Pratt, 2007:66). It is it's constant play on public insecurities about crime and criminals that lead to people thinking crime is on the increase, and allow for government to implement highly visible but in fact hollow initiatives (Monterosso, 2009:9) which, at the time seem to satisfy the public. Tonry (2004) has argued that New Labour's emphasis on anti crime policies and anti social behaviour, which was reflected in the media has influenced the public to be less tolerant of minor infractions and incivilities (as cited by Jones, 2007:855). It has been found, that without the influence of the media, which through it's nature and volume of reporting portrays crime to be of an immediate issue requiring dramatic action (Pratt, 2007: 67), the public is not nearly as punitive as the politicians would want them to be (Howard League, 2007). Furthermore, the public does not have "an insatiable appetite for punishment", seeing as judges, lawyers, academics and those promoting restorative justice have voiced their resistance to it (Pratt, 2007:2).
On the other hand however, according to Matthews (2005) all that has been mentioned is in fact a 'myth'. He suggests that "it is not that one cannot find examples of punitiveness but since the deployment of punitive sanctions has historically been an endemic feature of the criminal justice system we are faced with the question of 'what's new?' ".
As far as the new Coalition Government proposals are concerned, I do believe they are trying to move away from the populist punitive approach. In a BBC (2010) interview, Ken Clarke explains, that he does not think his approach to crime is populist, as crime justice should be based on civilising and liberal policies wherever possible, which is evident in the New Government's plans to place a greater emphasis on rehabilitative principles and properly implemented alternatives to prison, using prisons to only manage those labelled as most serious offenders, rather than using it as a deterrent like Labour has. As the title of their Green Paper suggests, the emphasis lies with punishing effectively, not excessively, a concept that was lost with Labour's patchy implementation of restorative justice.
Coalition Government: Business of Law and Order
At the same time as the penal policy discourse in the United Kingdom was becoming increasingly punitive, the state started to adopt a more managerial approach towards criminal justice, which included the re- emergence and expansion of the private sector involvement (Jones, Newburn, 2005:58). Since it's re- surfacing in the 1970's, this trend of privatization, which in economical terms, refers to the transfer of the ownership and control of an enterprise from the public to the private sector" (Newburn, 2005) and is described as "a contractual process that shifts public functions, responsibilities and capital assets from the public to the private sector" when referring to penal policy (Austin and Coventry, 2001 as cited by Cavadino and Dignan, 2006:304) has been a prominent and increasingly popular approach of managing punishment and reoffending, through a pluralization of services within the criminal justice (Newburn, 2005). This is reflective of Today's Government.
Based on what seems to be an opposing approach to Labour's criminal justice, the Coalition Government places a significant emphasis on the rehabilitation of the offender. Rehabilitation, as a sentencing rationale dates back to early days of probation. The principle in taking this approach is to prevent further offending of individuals, by adopting strategies such as counselling, cognitive- behavioural programmes, therapy or skills training (Ashworth, 2007:994). In the Green Paper (Ministry of Justice, 2010) the Government points out that the best way to improve public safety, reduce the number of victims, and reduce prison numbers is to reform offenders and reduce reoffending. The Government goes on to reassure that criminals will be punished appropriately, but at the same time, those sentenced to custody and community sentences will face a new tough and coordinated rehabilitation response (p.38). What the government is planning to enact, is a new approach of payment by results. This is a radical as well as decentralising reform, which means that the provision of rehabilitation will now only be provided by the private, voluntary or the community sector, and will be payed for by the savings it will generate, meaning that in order to get payed the initiatives put in place have to be successful. The government is also planning on giving the providers freedom to come up with new ideas of how to deliver results, hoping that by doing that it will open up the market to new ideas. The level of privatization being suggested here is therefore quite high. It is consistent with what Cavadino and Diagan (2006) describe as a fifth way in which privatization can occur in penal context. Although only in theory, it talks about a radical approach, where the private sector contracts out not only the delivery of penal services, but also the strategic functions behind that operation (p.304). The CBI (2005), one of the UK's top business lobbying organisation has in fact, in their report predicted that the era in which the government directly manages the organisations delivering the state funded services will disappear, in order to be replaced by government, which only manages the systems within which organisations and services operate. They go on to explain that the government will only provide and allocate the funding and develop the policy framework, setting out the way in which the providers will operate, leaving the management of its finances, as well as its services to the provider (p.14).
Behind these trends of privatization lie the principles of neo liberalism, which feature market driven policies, which allow for diversity of provision and therefore healthy competition (CBI, 2005). As Banton (1965) notes diversity of provision is certainly a positive thing and illustrates it with the view of policing, notes "a cardinal principle for the understanding of police organisation and activity is that the police are only one among many agencies of social control" (as cited by Newburn, 2007:629). It is no longer possible to view the policing effort as one only concerning the police, but one that has become pluralized through use of an array of different organisations (Newburn and Reiner, 2007:932). As to competition factor of neo liberalism, the Coalition Government's attractive idea of payment by results will encourage providers to work harder to come up with new, more effective solutions.
Considering the scope of this review, I hope it was successful in determining and demonstrating the issue of New Labour's (ab)use of populist punitiveness in their time in office, particularly after their 2006 Home Office Review, and also in demonstrating a different approach of the Coalition Government to the issues of crime and justice policies.