Punitiveness and the criminalisation of the other : State wards, unlawful non-citizens and Indigenous youth

This paper explores the genealogies of bio-power that cut across punitive state interventions aimed at regulating or normalising several distinctive ‘problem’ or ‘suspect’ deviant populations, such as state wards, non-lawful citizens and Indigenous youth. It begins by making some general comments about the theoretical approach to bio-power taken in this paper. It then outlines the distinctive features of bio-power in Australia and how these intersected with the emergence of penal welfarism to govern the unruly, unchaste, unlawful, and the primitive. The paper draws on three examples to illustrate the argument – the gargantuan criminalisation rates of Aboriginal youth, the history of incarcerating state wards in state institutions, and the mandatory detention of unlawful non-citizens and their children. The construction of Indigenous people as a dangerous presence, alongside the construction of the unruly neglected children of the colony — the larrikin descendants of convicts as necessitating special regimes of internal controls and institutions, found a counterpart in the racial and other exclusionary criteria operating through immigration controls for much of the twentieth century. In each case the problem child or population was expelled from the social body through forms of bio-power, rationalised as strengthening, protecting or purifying the Australian population.

Review of The New Punitiveness: Trends, Theories, Perspectives , edited by J Pratt, D Brown, M Brown, S Hallsworth and W Morrison

Book Review

Punitiveness and Political Culture: Notes from Some Small Countries

Green’s (2007, 2008, 2009) recent comparative work on child-on-child homicides in England and Norway has drawn attention to political-cultural explanations to account for differences in levels of state punitiveness. His work finds support for the distinction made by Arend Lijphart (1999) between consensus and majoritarian democracy, through his argument that English majoritarian political culture created powerful incentives to exploit the homicide of James Bulger in ways that were not present in Norway. Drawing on comparative research in Ireland, Scotland and New Zealand, this article joins with Green in enlisting political culture as an important explanatory variable yet challenges the usefulness of Lijphart’s typology in explaining penal difference.

Notes from Some Small Countries: A Study of the 'New Punitiveness' in Ireland, Scotland and New Zealand

In recent years there has been a remarkable surge of interest in the concept of punitiveness in theoretical criminology. Accounts serve to emphasise rupture over continuity, drawing attention to the increased focus on managerialism, risk and expressive penal policies in countries such as England and the US. Criticisms of these accounts have drawn attention to the weak empirical base for such assertions and the continued relevance of local cultural, historical and political conditions in mediating the effect of more punitive trends. In light of the relative neglect of smaller jurisdictions in this literature it was decided to locate these debates in three small common law jurisdictions, namely, Ireland, Scotland and New Zealand over the period 1976-2006 with a view to assessing the empirical evidence for penal change. This was done using a broader definition of punitiveness than normally employed incorporating indices relating to the ‘front end’ (eg police powers) as well as the ‘back end’ (eg prison and probation) of the criminal justice system. Data were collected on the three case studies using a multi-method approach involving examination of extensive quantitative data, interviews with key criminal justice stakeholders and documentary analysis. The data provide some support for the ‘new punitiveness’ thesis in these countries through a pattern of increased legislative activity aimed at controlling violent and sexual offenders and significant increases in the lengths of sentences imposed. However, analysis of qualitative data and a larger number of variables reveals distinctly different patterns of punitiveness over the thirty year period in the three countries. It is argued that the study holds important lessons for comparative criminology into the ‘new punitiveness’. There is a need for qualitative as well as quantitative data; for multiple rather than singular indices across a wide range of areas (juvenile justice, prison conditions, etc); and for ‘front end’ as well as ‘back end’ indices.

Reconceptualising Penality: A comparative perspective on punitiveness in Ireland, Scotland and New Zealand

Drastic increases in the use of imprisonment; the introduction of ‘three strikes’ laws and mandatory sentences; restrictions on parole - all of these developments appear to signify a new, harsher era or ‘punitive turn’. Yet these features of criminal justice are not universally present in all Western countries. Drawing on empirical data, Hamilton examines the prevalence of harsher penal policies in Ireland, Scotland and New Zealand, thereby demonstrating the utility of viewing criminal justice from the perspective of smaller jurisdictions.

This highly innovative book is thoroughly critical of the way in which punitiveness is currently measured by leading criminologists. It is essential reading for students and scholars of criminology, penology, criminal justice and socio-legal studies, as well as criminal lawyers and practitioners.

Mediating punitiveness: understanding public attitudes towards work-related fatality cases

This paper concerns an empirical investigation into public attitudes towards work-related fatality cases, where organizational offenders cause the death of workers or members of the public. This issue is particularly relevant following the introduction of the Corporate Manslaughter and Corporate Homicide Act 2007 into UK law. Here, as elsewhere, the use of criminal law against companies reflects governmental concerns over public confidence in the law’s ability to regulate risk. The empirical findings demonstrate that high levels of public concern over these cases do not translate into punitive attitudes. Such cases are viewed rationally and constructively, and lead to instrumental rather than purely expressive enforcement preferences.

Information and punitiveness: trial reconstruction in Ireland

Purpose – The purpose of this paper is to report results from a rape trial reconstruction in Ireland. Design/methodology/approach – A studio audience of 100 members of the Irish public were selected to attend a TV programme by the Republic of Ireland’s national broadcasting organisation. This involved the examination of the sentencing of a rape case. The audience’s sentencing preferences were measured at the outset, when they had been given only summary information about the case, and later, when full details had been disclosed. Findings – Previous research examining changes in public attitudes to crime and punishment has shown that deliberation, including the provision of new information and discussion with others and experts, tends to decrease public punitiveness and increase public leniency towards sentencing. An experiment in Ireland, however, showed that providing information does not invariably and necessarily moderate punitive attitudes. This paper presents the results, and offers some explanations for the anomalous outcome. Research limitations/implications – The pre/post design, in which the audience served as their own controls, is a weak one, and participants may have responded to what they took to be the agenda of the producers. Due to the quality of the sample, the results may not be generalisable to the broader Irish population. Practical implications – Policy makers should recognise that the public is not uniformly punitive for all crimes. There is good research evidence to show that the apparent public appetite for tough punishment is illusory, and is a function of the way that polls measure public attitudes to punishment. Sentencers and those responsible for sentencing policy would benefit from a fuller understanding of the sorts of cases which illicit strong punitive responses from the public, and the reasons for this response. However any such understanding should not simply translate into responsiveness to the public’s punitive sentiments – where these exist. Innovative survey methods – like this experiment – which attempt to look beyond the top-of-the-head opinions by providing information and opportunities for deliberation should be welcomed and used more widely. Originality/value – There have been limited research studies which reports factors which may increase punitiveness through the provision of information and deliberation.

The politicization of youth crime in Scotland and the rise of the 'Burberry Court'

In 2003, the youth justice system in Scotland entered a new phase with the introduction of a pilot youth court. The processing of persistent 16 and 17 year old (and serious 15 year olds) represented a stark deviation from a ‘child centred’ and needs-oriented state apparatus for dealing with young offenders to one based on deeds and individual responsibility. This article, based on an evaluation funded by the Scottish Executive, is the first to provide a critical appraisal of this youth justice reform. It examines the views of the judiciary and young offenders and reveals that the pilot youth court in Scotland represents a punitive excursion that poses serious concerns for due process, human rights and net widening.

Sentencing and public confidence : results from a national Australian survey on public opinions towards sentencing

This paper examines the critical issue of public confidence in sentencing, and presents findings from Phase I of an Australia-wide sentencing and public confidence project. Phase I comprised a nationally representative telephone survey of 6005 participants. The majority of respondents expressed high levels of punitiveness and were dissatisfied with sentences imposed by the courts. Despite this, many were strongly supportive of the use of alternatives to imprisonment for a range of offences. These nuanced views raise questions regarding the efficacy of gauging public opinion using opinion poll style questions; indeed the expected outcome from this first phase of the four phase sentencing and public confidence project. The following phases of this project, reported on elsewhere, examined the effects of various interventions on the robustness and nature of these views initially expressed in a standard ‘top of the head’ opinion poll.

Punishment and 'the People' : Rescuing Populism from its Critics

The term 'penal populism' is now reflexively used by criminologists to describe what many see as a dominant trend within penal policymaking in many western countries. The epithet 'populist' is used with no Jess frequency by media and other public commentators to refer (always pejoratively) to this or that political announcement, policy or style of political leadership, whether the context be specifically related to crime or some other arena of public affairs. In most accounts 'penal populism' (or 'populist punitiveness': Bottoms, 1995) is treated as a composite term. The two words are inseparably coupled and it is the penal that receives most of the detailed attention. As in more general political commentary, populism is tacitly understood as a negative and rather dangerous phenomenon, suggestive of manipulation, shallow-ness and demagoguery: in short, a corruption of normal, healthy democratic politics. As against such accounts, I want to suggest that debate about penal policymaking and its future -and particularly the prospects for more progressive policymaking in the area -would be assisted if populism was taken more seriously both conceptually and politically. This requires a decoupling of the concept of populism from what is habitually taken to be its punitive partner and that which defines its content. Currently the term is used without clear definition, let alone conceptual elaboration, to reference political pathology. Instead populism should be examined as a regular, meaningful dimension of contemporary political practice that has to be understood and engaged, not just denounced and extirpated. That is, I am seeking to make a case for bringing populism in from the despised margins to the centre of political practice and reflection. I will also briefly consider some of the implications this may have for penal politics specifically.

Review Essay: John Pratt and Anna Eriksson (2013) 'Contrasts in Punishment: An Explanation of Anglophone Excess and Nordic Exceptionalism'

This review essay combines the comments made by David Brown, Russell Hogg and Mark Finanne at the Crime, Justice and Social Democracy: 2nd International Conference July 2013. It is followed by a rejoinder by the two authors John Pratt and Anna Eriksson.

Continuity, Rupture, or just more of the 'Volatile and Contradictory': Glimpses of New South Wales' Penal Practice behind and through the Discursive

Throughout much of the western world more and more people are being sent to prison, one of a number of changes inspired by a 'new punitiveness' in penal and political affairs. This book seeks to understand these developments, bringing together leading authorities in the field to provide a wide-ranging analysis of new penal trends, compare the development of differing patterns of punishment across different types of societies, and to provide a range of theoretical analyses and commentaries to help understand their significance. As well as increases in imprisonment this book is also concerned to address a number of other aspects of 'the new punitiveness': firstly, the return of a number of forms of punishment previously thought extinct or inappropriate, such as the return of shaming punishments and chain gangs (in parts of the USA); and secondly, the increasing public involvement in penal affairs and penal development, for example in relation to length of sentences and the California Three Strikes Law, and a growing accreditation of the rights of victims. The book will be essential reading for students seeking to understand trends and theories of punishment on law, criminology, penology and other courses.