Politics and punishment

The relationship between politics and punishment

Government has a central role in what is criminalised

• Government officials have oversight of what acts are criminalised and carry a punishment 

• They can propose amendments to legislation to create new offences.

• This is a complex process and can require Cabinet Committee Clearance or assent through parliament.

Examples of acts that have become criminalised in the UK in the last 20 years

• Section 76 Serious Crime Act 2015 (SCA 2015) created the offence of controlling or coercive behaviour in an intimate or family relationship (CCB). It has a maximum penalty of 5 years imprisonment.

• Online Safety Act (2023) created offences including cyber-flashing and spending threatening communications

Summary

• Punishment and politics is closely linked. 

• Government can decide what is criminalised and how punishment is administered 

• We need to be mindful that what is criminal and how people are punished, are socially and culturally situated and influenced by out political system.

Contemporary History of Politics and Punishment 

The politics of punishment

• Political approaches to crime and punishment have changed over time. 

  • Post WW2 — Penal Welfare model (Garland 2002)

  • Post WW2 leading up to 1970s — Steady rise in crime rates

  • Up to 1970s — Collaboration with ‘experts’ in penal policymaking

  • 1980s - mid 1990s — Crime rates peak between 1992-1995 (Newburn, 2007)

  • 1980s onwards — Decline in trust in ‘experts’ (Feely & Simon, 1992; Garland, 2002). Increased focus on victims vs rights of offenders 

  • 1990s — Crime a major political issue. ‘Tough on crime’ mantra, but a decline in crime rates

  • 1997 onwards — Labour government adopted various ‘tough on crime’ policies

  • 2025 — Penal crises - Increases in sentence length and high prison population

• In the post war years, there was a larger focus on rehabilitation and reintegration (Garland, 2002)

• A perception that getting people into employment and back into communities after release as a good thing, to support a reduction in reoffending and therefore, better public safety.

• Criminal justice matters were largely informed by ‘experts’ (practitioners in CJS, academics etc)

• But, Mindful that people were still being subjected to prison and this did cause harm to individuals and communities (Sim, 2018)

1990a onwards: The Punitive turn

Response to crime and punishment in the 1990s

‘Labour is the party of aw and order in Britain today’ Tony Blair, 1992, Shadow Home Secretary 

‘We shall no longer judge the success of our system of
justice by a fall in our prison population. . . . Let us be clear.
Prison works’. Michael Howard, Conservative Party Conference, 1993, Home Secretary

Tough on Crime ‘Ping Pong’

• Throughout the early 1990’s the Conversative and Labour Parties went
  back and forth with ideas about how they would ‘tackle’ criminal justice matters.

• There was a perception that tackling crime was important to appeal to the public and win the 1997 election.

• Possibly because crime rates had been increasing until the mid-1990’s (Newburn, 2007).

Criminal Justice Policies in the 1990s

Conservative Party

• 1991 Criminal Justice Act (custody only when necessary). This position did not last long!

• Then, more policing of individual behaviours e.g. legislation around dangerous dog ownership, longer custody for people previously convicted of burglary, drug supply or assault.

• Attempts to appeal to public sentiments about ‘dangerous’ or nuisance
  behaviours.

• 1993 murders of Jamie Bulger - concerns about the need to respond to youth crime.

Labour Party 

• Continued with implementation of conservative policies around increased use of custody and longer sentences.

• Introduction of mandatory minimum life sentences.

• Between 1994 -2004 the number of men serving four or more years in prison doubled (Newburn, 2007).

• Think back to our current ‘penal crisis’ – longer sentencing = more people in prison.

Increased control 

• Focus on ‘managing’ people that might commit an offence, before they had done so – a ‘new penology’ (Simon and Feeley, 1992, 1994).

• For example, this was done through measures such as:
  1. Introduction of ASBO’s in 1998.
  2. Introduction of IPP sentences (2004)

Characterised by:

• Decline in trust of in ‘experts’ (Garland, 2002).

• Increased focused on victims’ rights at the expense of individual offenders’ rights.

• Offenders often pitted against victims, but offenders can be victims too (Drake and Henley, 2014).

  • During this time period (and still today)! crime and justice an increasingly political issue….

Penal populism

• We have explored how there has been an increased ‘tough on crime’ mantra since the 1990’s

• A decline in ‘expert’ views informing criminal justice policy.

• A shift towards longer, harsher sentencers for offenders.

• An increase in legislation that looks to ‘identify’ and ‘manage’ offenders, with the perception this will appeal to the public and respond to concerns about ‘risk and ‘insecurity’.

• These developments are referred to as ‘penal populism’.

what is penal populism?

• Penal populism is, ‘a form of political discourse that, directly or by
  implication, denigrates the views of professional experts and liberal
  elites and claims instead the authority of “the people” whose views about punishment it professes to express.” Garland (2021)

• A shift aware from protecting individuals against excessive state power, towards using state power to protect the public from ‘risky’ individuals’. Pratt et al. (2019).

• Reducing the risks of crime, before they have happened (e.g. IPP sentences).

• Deciding penal policy based upon what is perceived to be popular.

• Downgrading or dismissing evidence in favour of ‘common-sense’
  approaches.

But what is common sense?

• Thatcher: “It is ‘the people of Britain’ that I am listening to on crime and
  punishment, not the academy or administrative élites”

• Gove: “I think the people in this country have had enough of experts from organisations with acronyms saying that they know what is best and getting it consistently wrong”

Summary

• There has been a ’tough on crime’ approach to punishment from the 1990’s onwards.

• Approaches to punishment have become tougher (longer sentences) and sought to control groups perceived to be ‘risky’ (e.g. through increased surveillance introduced by ASBOs and for a time, IPP sentences.

• Penal populism has gained traction.

Why has penal populism become popular?

Penal populism — how hace we got here?

A rise in crime rates?

Fact: Crime rates have declined since the mid 1990’s. 

But, rates of imprisonment rates have increased.

Decline in recorded crime rates 

Increase in prison population 

Myth 1:A rise in crime rates 

• Crime rates have been declining since the mid 1990s

Myth 2: More serious offences are being committed

• The seriousness of offences has largely remained stable, but sentences have been increasing for the same crimes. Sentencing has a big part to play in contributing to overcrowding in prison (Newburn, 2007).

The media and penal populism

Roberts and Hough (2005)

• Regardless of whether crime is rising or declining, crime is always a feature of news reporting.

• The public are heavily influenced by media/news reporting on crime.

• The media often suggest that sentencing is lenient and perceives this appeals to public attitudes about crime.

• Indeed, survey research suggests the public have negative views about sentencing practices. This fuels political parties to be ‘tough’ on crime.

• But, would the public still have this perception of a need to be ‘tougher on crime’ if they had more information about the CJS, which is a largely ‘invisible’ institution (Sim, 2018)

• When the public have more information about sentences and the CJS, their perceptions are often less punitive (Roberts and Hough, 2005)

• So do the media create public punitiveness to crime, or is this punitiveness already there and the media appeal to this through their crime stories?

Media, Politics and Crime

Newburn (2007)

• The media do play a big part in disseminating information about the CJS.

• Therefore, they do contribute to the public understanding about the CJS (or lack of understanding).

• However, it is not necessarily the media that cause the public to be ‘tough on crime’.

• Because, it is political leaders that set criminal justice issues and politicians/department agencies that brief the media on policy change.

Why is penal populaism popular?

Newburn (2007) point to an affinity between neoliberal soial and economic policies and penal populism.

Neoliberalism

• In the context of England and Wales, neoliberalism has an economic dimension through policies that aim to create a free market and promote privatisation and de-regulation (Bell, 2010).

• Under neoliberal governance, the sovereign state reduces the services it provides to citizens.

For example, by minimising public spending on health, welfare and education (Bockerman, 2013).

Neoliberalism and Risk of crime 

• The state has a reduced role in protecting citizens from real or perceived risks.

• Instead, individual citizens, along with civic organisations (i.e., religious groups, employers etc), are tasked with the responsibility of managing a vast array of risks.

• This includes risks associated with crime and victimisation, that were
  previously seen as the responsibility of the state under welfarism (Garland, 1996).

• Organisations and individuals are becoming more conscious of possible risks and the need to respond and manage risks in their every-day life (Beck, 1992).

Neoliberalism and penal populism

Pratt et al (2019)

• Political commitment to neoliberalism from 1980’s onwards has created the conditions for penal populism 

• By engaging in penal populism, political parties can signal that they
  responding to public anxieties about the ‘risks’ of crime.

• It gives the impression that ‘risky’ or ‘dangerous’ individuals are the reason people feel less safe, are economically poorer etc.

• It enables governments to show they are ‘doing something’ to manage ‘risky’ individuals (by putting people in prison, they are ‘managing’ this population)

• But, in reality, this is not addressing the root cause – which for Pratt is
  insecurity created by a withdrawal of the welfare state; a ‘risk’ society where those who are not ideal neoliberal subjects are marginalised and punished.

Summary 

• Political approaches to be ‘tough on crime’ are not duelled by an increase in reported crimes.

• Complex relationship between the public, the media and politics feeds into criminal justice policy.

• At the macro-level, neoliberal governance is argued to fuel penal populism.

Punishment, exclusion and control

Social exclusion as an implication of penal populism 

Sim (2018)

• Criminal justice legislation from the 1990’s onwards disproportionately
  criminalised poor and minority ethnic groups.

• For example, ASBOs and benefit fraud has become criminalised and
  certain actions have attracted longer custodial sentences, drawing more people into the CJS.

• But no policy focus on white collar crime. Sim argues this is especially
  problematic given the 2008 financial crash, which benefited elite groups and further inequality for the wider population.

• Here we can see the contrast between who and what is criminalised in contemporary society.

Prison population — exclusion

• Prison population made up of socially excluded individuals.

• Criminal justice process, including punishment and imprisonment, targets poor and marginalised individuals.

• Reiman (2004) The Rich Get Richer and the Poor Get Prison

Our policy approaches to punishment mean poeple are controlled

• People that are deemed as ‘risky’ of offending, are excluded from certain locations.

• People that ‘could’ commit a crime are also controlled through being excluded from public spaces e.g. hostile architecture (Rose, 2000).

• These measures give a signal to the public that politicians are addressing ‘doing something’ to keep them safe.

  
  

What is happening in other countries 

• The US, along with other countries such as New Zealand has a similar picture to the UK.

• However, there are dome countries that have reduced their prison population in recent years — Germany, Sweden, Norway (Prison Reform Trust, 2021)

• These countries do have different approaches to penal policy, but they have managed to keep prison populations relatively low during the 21st century.

Explaining variations in prison populations (Allen, 2012)

• Differences in sentencing tariffs

• Effectiveness of community sentences

• Investment in drug treatment programmes in and outside of prison and mental health support 

• Not using recall as punitive 

Why are prison populations lower in other EU countries?

Punishment is political at all stages 

• What prison conditions are? If prisoners can vote?

• All of these decisions are political and they are not universal 

• Politics is why punishment looks different in different contexts (Sparks, 2013)

• Political approaches to punishment are influenced by wider social and cultural perceptions.

• Where alternatives to custody are accepted by the public and sentencers have the flexibility to divert people away from custody, incarceration rates are lower. (Aebi et al., 2023)

• Wider social conditions e.g. levels of inequality, education levels, what opportunities are available to people etc., all impact on crime rates and incarceration rates.

The future

• Penal populism will continue…

• But, this will be absorbed into a wider populist politics (Pratt, 2022).

• Again this type of politics can be argued to be created due to neoliberalism, because people distrust the main political parties for creating uncertainty in contemporary times.

• Remains demands on the CJS/punishment to provide extra security (through incapacitation and deterrence), but this unlikely to be effective in wider neoliberal society…
  

Summary: The Politics of Punishment

• Crime and justice are key areas of politics.

• Political ideologies can change the construction of who or what is ‘criminal’.

• Politicians and policymakers are mindful to appeal to public attitudes and the media.

• Shift towards ‘risk society’ driven by neoliberalism has created the
  conditions for penal populism.

• Populism underpinning approaches to the CJS in England and Wales, and elsewhere. But, not all Anglophone jurisdictions have made this shift.

• What does the politics of punishment in recent times tell us about the aim of punishment? A greater focus on retribution over rehabilitation?