Penal Policymaking Research Articles

Making sense of penal difference: Political cultures and comparative penology

In this paper I argue that if we are to make sense of why punishment differs between jurisdictions, then we should focus on the political cultures that shape penal practices. Political culture is conceived of here as a ‘practical consciousness’, made up of implicit and express cultural values and political commitments. Using the comparative case studies of Ireland and Scotland (from 1970–1990s), the paper tries to show that by taking the time to recover and interpret the beliefs and ideas that frame penal policymaking, we will be better able to illuminate and make sense of cross-national penal patterns. And using the leverage of cross-national contrast and analysis, we can also better understand punishment and its place in each society.

Penal Elitism: Anatomy of a Professorial Ideology

In recent decades, many scholars have invoked the concept of penal populism to explain the adoption of “tough on crime” measures and a wider politics of “law and order” across the post-industrialized world. But scholars who invoke the concept often betray an implicit commitment to its twin ideology—penal elitism—the belief that penal policymaking should not be subjected to public debate and that matters pertaining to crime control and punishment should be left to experts or specialists. The doctrine contains four key properties: isolationism; scientism; a narrow notion of “the political”; and a thin conception of “populism.” Isolationism involves creating buffers around arenas of social life—including criminal justice systems—to remove them from what is held to be undue democratic influence. Scientism is the overvaluation of scientific reason and the dismissal of a public believed to be emotional, irrational, or exceedingly simplistic. Politics conceived narrowly limits “the political” to that which takes place within the formal political system, ignoring the wider notion of politics as the exercise of symbolic power in everyday life, which extends far beyond the political system as such. The thin conception of “populism” ignores the fact that populism is an ideology promising to protect the public from harms of neoliberal capitalism that nevertheless fails to offer a plausible alternative to market rule. In this article, I argue that in place of either penal populism or penal elitism, academics should engage in democratically grounded practices to reverse harsh justice by including the public in a reformulated politics of punishment.

Solid Foundations? Towards a Historical Sociology of Prison Building Programmes in England and Wales, 1959–2015

AbstractBetween 1959 and 2015 the UK government embarked upon five major phases of prison building in England and Wales. Drawing upon detailed archival research, this article offers a historical sociology of prison building programmes. It traces the evolution of prison building as a public policy concern and documents how this key site of penal policymaking was interpreted, and contested, by policy actors who were themselves embedded within deep institutional structures of power and meaning. It argues that prison building has moved from the margins to the mainstream of penal policy, shaped by strongly‐held convictions about the liberal‐democratic state, the competition for control of finite resources and the complex ‘geography of administration’ that underpins the British machinery of government.

Introduction: Interpreting Penal Policymaking

This special issue contributes to the efforts to understand and explain penal change by exploring and illustrating what it means to examine penal policymaking through a range of interpretive lenses and via a number of specific case studies. There is, at present, renewed interest in the exploration of penal change and the political dynamics that drive, underpin, and relate to, developments in penal policy and practice (see, for example, Barker and Miller 2017; Birkett 2018; Goodman, Page and Phelps 2017; Jennings et al. 2018; Lacey, Soskice and Hope 2018; Loader and Sparks 2016; Reiner 2017). This latest wave of scholarship is situated within, and owes great intellectual debts to, a rich extant literature whose foundations, due to the interdisciplinary nature of penological scholarship, span law, sociology, philosophy, social theory, political science, and beyond.

Politics and Penal Change: Towards an Interpretive Political Analysis of Penal Policymaking

AbstractAbstract: This article offers an interpretive political analysis framework, exploring and asserting its value for understanding penal change. It is argued that this approach serves, in part, to emphasise the importance of the minutiae of political activity: the crucial impact that apparently minor decisions, unimportant participants, or particular ‘rules of the game’ can play in specific outcomes. It emphasises the importance of human agency and meaning: the relationship between politics and fate. It facilitates the connections of particular ‘micro’ analyses with ‘macro’ accounts of penal change. I argue that the approach set out here thereby enables us to place centre stage the beliefs and practices of policy participants, and the political dynamics of policymaking. By doing so, particular case studies serve as valuable ‘windows’ into the meanings in action that iteratively make sense of, respond to, and thereby (re‐)constitute the realities in which actors operate, specific penal outcomes, and broader penal change.

Crafting public security: demilitarisation, penal state reform and security policy-making in post-authoritarian Chile

ABSTRACTHere I dissect the institutionalisation of ‘citizen security’ as a category and sector of public policy in post-authoritarian Chile. Deploying a Bourdieusian field theory approach and questioning narratives of security policies as responses to criminality or adaptations to democratic values, I argue that the construction of a new security policy sector – with a new consensus (distinct from that of National Security), with reformed police and courts in its core, leaving aside the military and extending beyond traditional agencies – derives from (i) struggles over policing and criminal justice reforms, (ii) tensions between the military and democratic authorities in democracy and (iii) performative integrations of the new policy components. These mechanisms explain the evolution of the security problem and the progressive aggregation of bureaucratic agencies and methods to the ‘public security policy’ – policing, judiciary, urban design, prisons and prevention plans. I close discussing alternative accounts of institutional variations in security governance in the region.

Tracing the Gordian Knot: Indeterminate‐Sentenced Prisoners and the Pathologies of English Penal Politics

AbstractThis article explores some of the key pathologies of English penal politics by applying an interpretive political analysis perspective to the specific issue of the plight of the ‘prisoners left behind’, the thousands of indeterminate‐sentenced IPP (imprisonment for public protection) prisoners who remain incarcerated, notwithstanding the abolition in 2012 of this sentencing option targeted at ‘dangerous offenders’. The article draws on research findings from an ESRC funded study of penal policymaking to examine why the Gordian knot of the prisoners left behind has proved to be so hard to untangle. The broader lessons of this specific story are then set out. In particular, it is argued that the public and political debate around criminal justice has become damagingly narrow over recent years.

The Policymakers’ Dilemma: Change, Continuity and Enduring Rationalities of English Penal Policy

This article analyses how penal policymakers interpret, rationalize and thereby instantiate ‘external’ change. In order to do so, it presents a critical reconstruction of penal policymaking during the 2010–15 UK coalition government, drawing on interviews with senior policymakers. It explores how policymakers sought to respond to the uncertainties of this unusual period in British politics. We see the ‘shallow roots’ of the 2010–15 coalition: in the face of novel challenges, policymakers grasped for traditional, exclusionary rationalities and practices. This study demonstrates the complex interaction between conditions ‘out there’, the rationalities and practices of specific policymakers, and eventual policy outcomes.

Policy mobilities and comparative penality

The study of ‘policy transfer’ has been subject to sustained criticism, in particular by critical policy studies scholars. This critique—together with the rather marginal role that policy transfer research has played in criminological debates to date—raises questions about the continued utility of such research in scholarly discussions of crime control and penal policy-making. However, we argue here that such studies can enhance our understanding of the local, national and global influences over crime control policy formation. In particular, the developing interest in comparative criminology, in the political economy of punishment, and in the ‘proximate causes’ of penal change, are all areas to which this work can make a useful contribution. Although we feel that some elements of the critique are over-stated, the critical policy studies notions of ‘mobilities’ and ‘assemblages’ offer important advances that capture more fully the complexities of the processes involved in the cross-national movement of penal policy.

Democratization, politics and punishment in Argentina

In this paper, I will analyze the metamorphosis of penal policy during the process of democratization of the last three decades in Argentina. The beginning of the transition was characterized by an elitist, formalist, and expert-driven mode of penal policy-making that produced several initiatives towards penal moderation. In this context, a certain contraction of punitiveness was produced. This pattern changed in the 1990s. In the context of the extreme neoliberal reforms, some initiatives had emerged oriented towards the increase of penal severity and extension, in an ambivalent landscape. But in the second half of this decade, penal populism emerged “from above” as a reaction of the elites that changed radically the mode of penal policy-making and fueled a great growth of punitiveness. After the crisis of 2001, there was a new wave of penal populism “from below” supported by strong social mobilizations around the figure of the victim. This radical mutation of the mode and orientation of penal policy-making generated an image of an epochal change that seemed to set up a new relationship between penalty and democracy. However, in the mid-2000s some symptoms of blockage of penal populism started to appear, creating tensions and contradictions still present today.

Penal Populism and the Problem of Mass Incarceration:

Abstract In this paper, Copson explores the question of what might be done in order to enable us to imagine responses beyond mass incarceration. She considers Albert Dzur's general calls for the creation of spaces for democratic deliberative participation and his particular reimagining of the jury as one such potential space. Drawing connections between such calls and David Harvey's “spaces of hope,” Copson argues that whilst such remedies to reinvigorate criminal and penal policy-making as meaningful sites of civic engagement are an important element in challenging the tendency towards punitive penal responses, we cannot and should not detach questions of crime and justice from the more holistic examination of society if we are to avoid simply reifying and further legitimating existing penal responses. Finally, invoking the emerging “utopian method” identified by Levitas, Copson suggests a possible conceptual means to achieving this end.

Penal Populism and the Folly of “Doing Good by Stealth”

Abstract This article evaluates what Drakeford and Vanstone (2000) have called “doing good by stealth”—the quiet embrace of progressive penal policies, often twinned with contradictorily punitive rhetoric—in order to critically examine both the motives of policymakers under the pressures exerted by the “penal populism calculus” and the consequences for penal policymaking processes and outcomes. It offers a typological model of penal policymaking strategies and outcomes based on two polar dimensions: covert (quiet) vs. transparent (loud), and fair/effective (high-roading) vs. unfair/ineffective (low-roading). It provides examples of each strategy, examines the arguments for and against each one, and proposes alternative ways to achieve the legitimation goals of penal populism, informed by theories of public deliberation and participatory democracy.

Rethinking Public Opinion in Penal Policymaking: Recommendations for Research

AbstractPublic opinion is often described as a powerful force in penal policymaking in the USA. Unfortunately, research on public opinion in penal policymaking has been limited by inattention to a number of important variables: definitions of public opinion, individual and interpersonal constructions of public opinion by political leaders themselves, state differences in historical contexts and political cultures regarding public engagement and political influence, and diversity in the roles of public opinion at different levels of government. This paper considers current dilemmas in this area of inquiry and reviews recent research in order to highlight potentially fruitful new directions for research.

Penal Panopticon: The Idea of a Modern Model Penal Code

The Model Penal Code is ripe for a fundamental reconsideration. Drafted in the 1950s, the Model Code today no longer serves as a model for American penal legislation. Since its publication in 1962, the conceptual foundation of the Model Code has collapsed in form and in substance. In form, the Model Code is a child of post-war Legal Process, and as such reflects the straightforward means-ends pragmatism associated with that law and policy movement. After decades of attacks on its naive assumptions about societal consensus regarding policy ends, Legal Process has been thoroughly discredited in theory, even if no constructive alternative to its rational and comprehensive approach to law reform has emerged. In the practice of American penal law, the war on crime has led to the suspension of most constraints on penal policymaking, which as a result has been neither rational nor comprehensive. In substance, the Model Code implemented a simple consequentialist model: prevent crime through deterrence and, if deterrence fails, through “treatment and correction.” Today, this model no longer enjoys the broad consensus it might have in the 1950s. Instead retributivism, decried as irrational, anachronistic, and barbaric by the Code drafters, has reasserted itself as a demand of penal justice. Even within a consequentialist framework, treatment theory has long since been radically transmogrified, if not discarded altogether. As enemies of the state in the war on crime, offenders today are warehoused or executed rather than “corrected.” Within the confines of treatment theory, the offender as menace to society receives incapacitative, not reformative, treatment.