Comparative Politics Of Punishment Research Paper

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1. The Minimally Punishing Democratic State

The most striking development in twentieth-century penal politics was the emergence in the advanced democracies of the minimally punishing state. The development was striking because it occurred during one of the largest crime waves in recorded history—a tidal wave ignored by all democratic political systems for one or even several decades. The modern democratic state was able to dismiss the demand for a state response to the crime wave constituted by the annually mounting numbers of thousands, even millions of crime reports. Most democratic governments developed surprising capacities not to punish in spite of the victim’s entitlement to punishment implied by penal codes. (No penal code contains a warning label to victims that the punishments it threatens will be applied at most to three percent of those arrested and one percent of those who violate its terms.) Attrition rates for criminal cases became extremely high in all democratic systems, from the apparently most punitive to the least. A decision seems to have been taken in most democracies that the state will never punish (or at least imprison) much more than 100 per 100,000 people at any time, no matter which or how many crimes are committed. It has been possible for democratic states not to enforce the criminal law on a massive scale, although enforcing the penal code against violence and predation is popular among voters.

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2. The Convergence On Minimal Punishment

2.1 The Convergence

The facts of convergence on minimal punishment levels are clear. In 1940, most of the currently advanced democracies had capital punishment; by 2000, only two of them still inflicted the death penalty and only on a much reduced scale. In 1960, there were in the advanced democracies on average 11 prisoners (for all offenses) per reported robbery; in 1990, only three, and, without Japan, only one. In 1960, the range in punishment lay between New Zealand with 30 prisoners per robbery and Norway with 24, on the one hand, and the USA with only two; by 1990, the range (excluding Japan) lay between three prisoners per robbery in California and Austria, and fewer than 0.5 in Italy and The Netherlands. Between 1960 and 1990, the democratic state largely relinquished the threat of death punishment and reduced to nearly token levels the threat of prison punishment.

2.2 Elite Conversion To Leniency

The decision to ration punishment rested on what had become, by the 1960s, a gap between the lenient mentalities of political elites and the more traditionally punitive, if also ambivalent, mass public. This gap was best explained by Norbert Elias, who traced what he called ‘the civilizing process’—the diffusion of antiviolence mentalities among and by the middle and upper classes since the Middle Ages, especially since the monopolization of legitimate violent punishment by the state. (Elias unfortunately did not theorize the strong decivilizing processes on full display in the twentieth century, including the decivilizing results of overcivilizing the state: Elias 1982.)

2.3 The Emergence Of Penal Sentimentalism

The medieval elite–mass gap widened with the top-down spread of the ideas of the eighteenth-century Enlightenment and of nineteenth-century Romantic, liberal, and socialist movements–humanitarianism, human perfectibility, and the social responsibility for crime. Gradually created was a powerful group of aristocratic and bourgeois reformers who changed elite attitudes toward the lower classes, the poor, the disorderly, and eventually even minorities. The revision of (elite) attitudes toward the poor, the sick, the aged (as well as vagrants, drunks, addicts, juveniles) which eventually brought about the welfare state was accompanied by a closely related revision of attitudes toward criminals—which brought about the minimally punishing state. Both the poor and criminals were seen as irresponsible victims of society—to be helped, not chastened. And the penal sentimentalism of enlightened seculars soon also came to characterize the elites still faithful to Christianity but less and less faithful to traditional hardline Pauline concepts of punishment, either in this world or the next.

2.4 Leniency In Spite Of Marxian Capitalism

The growing leniency of elites in nineteenth and twentieth-century capitalist democracies was directly contrary to Marxist predictions; indeed, Marx had to be ‘turned on his head’ to explain the diminution of punishment under democratic capitalism and its exasperation under communism. Ironically, one of the few serious Marxist works on penality, Rusche and Kirchheimer’s Punishment and Social Structure (1968), was also one of the first and few accounts of ‘the general tendency toward leniency’ under capitalism; it purported to use Marxist concepts (the relationship between capitalism, labor supply, and punishment) to explain penal evolution generally, and the trend toward penal leniency, in particular. It argued grandly that ‘Every system of production tends to discover punishments which correspond to its productive relationships … The use or avoidance of specific punishments, and the intensity of penal practices (are) determined by social forces, above all by economic and fiscal forces’ (Rusche and Kirchheimer 1968). But to account for the trend toward leniency under capitalism, Rusche and Kirchheimer were forced to be eclectic, rather than dialectic, to explain leniency in terms only incidentally related to evolving productive relationships. They invoked instead the rising standards of living for the lower classes; a ‘consequent’ decline in criminality; the development of ‘penal liberalism’ and social insurance (‘welfare statism’); declining conviction rates; and successful penal reform campaigns by bourgeois professionals. (This particular package of explanations would not, of course, explain why, a decade after World War II, when crime became rampant, crime-based punishment rates under capitalism continued to decline (Rusche and Kirchheimer 1968).)

2.5 Leniency In Spite Of Social Diversification

In contrast to Marx, but with the advantage of greater hindsight, Durkheim correctly predicted (in 1902) growing leniency under democratic capitalism, but he attributed leniency to a supposed fracturing of the collective conscience due to the division of labor (Durkheim 1902 1978). Actually, social diversification has not destroyed consensus on the evils of violence and predation. The factor most pertinent to the decline of punishment, in fact, was not social and economic but political: the ability of elites (as theorized by Michels, Mosca, and other ‘democratic elitist’ theorists) to ignore rank and file opinion in otherwise democratic structures.

2.6 Leniency In Spite Of Democratic Competition

Convergence on leniency was indeed paradoxical— given democratic competition and the persisting, even growing, crime-induced popularity of punishment among voters. The paradox is possibly explained by:

(a) party elites’ ability to manipulate electoral and political agendas, to collude in order to suppress conflict over penal policy;

(b) the ability of the Left for decades to ignore constituent demands for security;

(c) conservative complicity in the antipunishment project;

(d) antipunishment bias in the ideological-group lobby and the ideology production system (ideological or advocacy groups vastly outweighed interest groups);

(e) stratification of the media, with elite media reinforcing antipunishment ideological hegemony and rewarding elites for antipunishment action;

(f ) the ability of elites to freeze and even to reduce prison capacity during an historic crime wave;

(g) declining detection rates (though more and more suspects were being produced by the police);

(h) the formation of a powerful international antipunishment movement enabling lenient domestic elites to invoke international norms, praise, and interventions on behalf of their domestic agendas;

(i) the ability of lenient political elites sharply to reduce prosecution and prison-sentencing rates, even in compulsory-prosecution systems and in inquisitorial justice systems, with low evidentiary barriers to conviction; and

( j) the stigmatization within elite circles of responses to demands for punishment as ‘populist’, or worse. Thus penal policy has often become one of many policy areas in which public influence, especially in Europe, has often been weak—in spite of the public’s interest, known preferences, and voting power.

Convergence on leniency also occurred in the advanced democracies in spite of periods of high unemployment, increasing ethnic diversity, a drugs pandemic, periods of unremitting terrorism, the flourishing of organized crime, and a sevenfold increase in serious crime (using robbery as an indicator).

3. The Differential Development Of State Capacity Not To Punish

But if all democracies have become minimally punishing states, some have become less minimally punishing than others. The token-punishment state has been politically most viable in Europe and least viable in the USA. The factors behind the convergence on leniency operated with differential effect in Europe and the USA, resulting in somewhat differential state capacity not to punish. Among 90 national and subnational jurisdictions (all in advanced democracies), the strongest predictor (in cross-sectional analysis) of per capita incarceration rates is the serious crime rate (using murder or robbery rates). The USA has had higher per capita prison rates because it has had much serious crime to be punished: it is (marginally) harder not to punish in high-crime jurisdictions than in low-crime jurisdictions.

3.1 Does Party Count?

One of the best predictors of per capita prison rates, after crime, is the strength of the Left since 1960. Although its historical record for leniency in penal matters is quite checkered (Robespierre, Lenin, Stalin, Mao, Pol Pot, and Castro come to mind), the Left—at least after World War II and in the democracies— became the major political force behind the antipunishment movement. The Left became solidly against capital punishment, sympathetic to criminals, defensive of prisoner rights, and hostile to spending on prisons, especially after the myth of therapeutic prisons was shaken (but far from destroyed). Ironically, the Left was slower than the Right to heed the demands of its own constituents—the predominantly lower-class and minority victims of crime—but the Left had major stakes in trying to prove that the welfare state could replace the punitive state in preventing crime. As it became clearer in the 1970s and 1980s that criminals thrived in even the most perfected welfare states (Sweden and The Netherlands, for example), that working class voters could be even angrier about crime (especially minority crime) than conservative voters, that the crime wave denied for so long by criminologists was real, and that left-voting middle-class penal liberals were not likely to desert to the Right, the rhetoric of the Left and eventually some of its policy stands began to correspond more closely to widespread public sentiments of insecurity and ineffective justice (Tham 1999).

Moreover, in spite of the correlation between Leftism and low per capita punishment rates, the creation of the minimally punishing state has required, as noted above, the complicity of conservatives. The lowest imprisonment levels in their respective postwar state histories occurred under Reagan in California, Agnew in Maryland, and Wallace in Alabama; the lowest levels of federal imprisonment occurred under Nixon; the lowest imprisonment levels occurred under religious party hegemony in The Netherlands and Italy, and under Catholic auspices in Ireland; the leading historical examples of decarceration (Rutherford 1984) occurred under Liberal and Tory auspices in England and Liberal Democratic Party auspices in Japan. The role of conservatives in the antipunishment movement is, of course, an old story. Capital punishment abolition, after all, was carried out by enlightened despots in the eighteenth century; by the czar and other monarchs in the nineteenth century; and by nineteenth-century bourgeois liberal oligarchs in The Netherlands, Italy, and Portugal. Abolition after World War II was proposed in West Germany by the extreme Right and supported by the Christian Democrats in West Germany and Italy. Abolition in France in 1981 was supported by Gaullist and Giscardian elites. Restoration of capital punishment in the UK and Canada has repeatedly been blocked by Tory cabinet ministers.

4. Punishment And State Formation

We should not, however, exaggerate the differences among the advanced democracies. Even in the USA public tolerance for penal sentimentalism lasted well into the 1970s and early 1980s. And the subsequent backlash that doubled and tripled US prison populations only brought the prisoner–robbery ratio (1.8 in 1970, 1.6 in 1990, 3.5 in 1997) into line with European ratios—about the same as Sweden in 1970 or Austria in 1990, and nowhere near the 11 prisoners per robbery average for the advanced democracies in 1960.

The modern state was built by substituting state for private punishment. Bentham could write without fear of contradiction: ‘No punishment, no government; no government, no political society’ (Bentham 1831, p. 7). Many democracies of the twentieth century set out to disprove Bentham by showing that a state could protect its citizens and preserve order with few sanctions involving life or liberty. They succeeded in preserving the state’s monopoly of legitimate violence—and proving the electoral viability of the minimally punishing state—but often at the cost of allowing the level of illegitimate violence to return to near medieval (i.e., prestate) levels.


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