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Recent decades have seen a revival of interest in the broad social, political, and economic forces which are shaping criminal justice policy in Western democracies. The global economic changes which began in the 1970s – recession, the contraction or collapse of manufacturing industries, the growth of unemployment, and the creation of a large sector of people either unemployed or employed in insecure forms of work – it is argued, have eroded the consensus which sustained postwar penal welfarism. As rising crime across Western countries gradually produced a situation in which the experience of criminal victimization and of managing the risk and fear of crime became normal features of everyday life, crime became increasingly politicized, leading to exclusionary criminal justice policies (Pratt 2007).
In making this argument, scholars like Garland (2001), De Giorgi (2006), Reiner (2007), Wacquant (2009), and Young (1999) have refined the Marxist account deriving from Rusche and Kirchheimer (1969) with an analysis of cultural and political factors, thus avoiding the pitfalls of economic reductionism. Yet in each case, an emphasis on structural forces tends to direct attention away from variations in the institutional framework through which those forces are translated into concrete social policies in different countries. While each of these accounts, therefore, suggests hypotheses which are ripe for comparative investigation, a comparative focus does not feature prominently in their analyses (though see Garland 2007).
Not all “late modern” democracies, however, have opted for a neoliberal politics (Lacey 2012). And many have managed to sustain relatively moderate, inclusionary criminal justice systems, while the British and American systems have, albeit to different degrees, been moving toward ever-greater penal severity. Even as between Britain and the USA, the differences in terms of the overall scale and quality of punishment are striking. Countries like Denmark, Germany, or Sweden fulfill the prophecy of “penal populism” yet less accurately (Lacey 2008; Cavadino and Dignan 2006).
But how do these resemblances across types of political economy hold together over time, and why do they produce systematically different patterns of punishment? Comparative institutional approaches seek to answer these questions. They argue that progress can be made toward a genuinely explanatory account by drawing on the political-economic analysis of comparative institutional advantage and of the capacities for strategic coordination inherent in differently ordered systems. Structural forces are seen as mediated not only by cultural filters but also by economic, political, and social institutions: it is the institutional mediation of cultural and structural forces, and its impact on the interests and identities of relevant social actors, which is argued to produce the persistent variety in criminal justice which, notwithstanding globalization (Lacey 2011), we see across systems at similar stages of capitalist development (Sutton 2004; Tonry 2007).
Recent comparative institutional analysis (Lacey 2008) builds on the distinction between “liberal” and “coordinated” market economies developed by political scientists Peter Hall and David Soskice (2001). A “coordinated market economy” (CME) functions in terms primarily of long-term relationships and stable structures of investment, not least in education and training oriented to company-or sector-specific skills, and incorporates a wide range of social groups and institutions into a highly coordinated governmental structure. Such a system is argued to be more likely to generate incentives for the relevant decision-makers to opt for relatively inclusionary criminal justice for it is a system which is premised on incorporation and hence on the need to reintegrate offenders into society and economy. Typically, moreover, the interlocking institutions of coordination of the CMEs conduce to an environment of extensive informal social controls; this in turn supports the cultural attitudes which underpin and help to stabilize a moderated approach to formal punishment.
A “liberal market economy” (LME) – of which the extreme case, significantly for any argument about criminal justice, is the USA – is typically more individualistic in structure, is less interventionist in regulatory stance, and depends far less strongly on the sorts of coordinating institutions which are needed to sustain long-term economic and social relations. In these economies, flexibility and innovation, rather than stability and investment, form the backbone of comparative institutional advantage. It follows that, particularly under conditions of surplus unskilled labor – conditions which LMEs are also more likely to produce – the costs of a harsh, exclusionary criminal justice system are less than they would be in a CME (Fig. 1).
Political Economy, Imprisonment, And Homicide
This institutional approach sees the distinction between different varieties of advanced capitalist political economy as a powerful tool in building an understanding of the inclusionary and exclusionary dynamics of criminal justice systems. For, particularly as developed in the most recent political economy literature, which explores the relationship between the regime of economic production and labor market institutions and a cluster of social and political institutions, the distinction has an analytic reach into a wide range of political and economic variables. The various factors which characterize coordinated and liberal systems are closely intertwined: the number of variables further implies that there may be paradigm and less central cases of each type of system. The features of the LME/CME distinction of greatest relevance to criminal justice are as follows:
1. The structure of the economy: production regimes, labor markets, education and training, and disparities of wealth
The departure point for an analysis of two main varieties of capitalism – an individualistic liberal model whose comparative advantage lies in flexibility and a coordinated model in which comparative advantage depends on long-term investment in workers and their skills – lies in the changing nature of economic relations. In Britain and the USA, for example, the dynamics of an LME have accelerated markedly over the last 30 years, as many of the attitudes and values which sustained, respectively, the postwar welfare state settlement and the Great Society programs have come to be eroded by a more aggressively market-oriented culture (Reiner 2007). This culture is itself premised in part on the imperative of high performance amid increasing global economic competition, with the collapse of Fordist production regimes and the availability of cheap manufactured goods from countries like South Korea, China, and India. The inevitable upshot is structural economic insecurity for low-skilled workers. In a short-term economic culture, the bottom third of the workforce risks becoming a socially as well as economically excluded group.
In the CMEs, by contrast, a longer-term economic culture appears to have survived increased international competition and the collapse of Fordism. Within the political economy of comparative advantage, this is seen as a function of several interlocking factors: the nature of the economic activities in which these countries have concentrated their efforts, the close incorporation of employers as well as unions in the management of the economy, and the implications of each of these factors for the structure of education and training. Unlike the increasingly flexibilized LMEs, many CMEs excel in producing high-quality goods which depend on industry-specific, nontransferable skills. In this context, employers have strong reason to invest in education, training, and apprenticeship systems. They also have strong reason to use their considerable bargaining power with government to press for generous welfare provision for workers who are temporarily unemployed but whose skills remain necessary to the economy. With the higher levels of investment in education and training typical of these economies, which also demonstrate lower disparities of wealth and higher literacy rates (Iversen and Soskice 2009), the costs of pursuing socially exclusionary policies in areas such as criminal justice are relatively high. This implies that many of the general theories of increasing penal severity are based on an account primarily applicable to LMEs as opposed to CMEs, whose high-skill production regimes were less strongly affected by the collapse of Fordism.
In the LMEs, increasing relative deprivation consequent on flexibilization of labor markets and growing disparities of both income and skills pose a huge challenge for inclusionary criminal justice policies (Reiner 2007, Chap. 3), particularly in a world in which mass communications and increased levels of education imply the cultural inclusion of the relatively deprived within the individualistic values of a consumer society from which they are economically excluded. What is more, this relative deprivation has increased along a number of dimensions, accentuating both differences between the richest and the poorest and the difficulty of moving from a position in the bottom one third or so into the relatively advantaged majority (Young 1999). In this context, prisons have become a mechanism for disciplining those excluded from the legitimate economy. During this period there has been a large increase in the absolute and relative size of the harsher end of the American and, to a lesser extent, British criminal justice systems. In England and Wales, the imprisonment rate virtually doubled – from 79 to 152 per 100,000 – between 1970 and 2011 (http://www.prisonstudies.org/info/worldbrief/ wpb_country.php?country¼169 accessed August 25th 2011), while in the USA, it quintupled – from 153 to 743 per 100,000 – between 1974 and 2009. This is reflected not only in the scale of imprisonment and policies such as mandatory minimum sentences but also in a weakening of political sensibilities in favor of human rights and decent conditions for prisoners.
2. Political systems: electoral arrangements and the bureaucracy
The analysis of two systematically different variants of contemporary capitalist economy deploys not only economic variables but also a variety of other institutional variables. Among the most important of these for criminal justice is electoral politics. Given the increasing salience in many countries of criminal justice to politics and the force of electoral discipline on democratic governments, the relationship between popular attitudes to crime and punishment and the political system constitutes an important variable in any attempt to understand the differences between contemporary penal systems in relatively similar societies. This is the case even if popular attitudes conducing to fear of crime and to penal severity are on occasion stimulated by government rhetoric and policy (Beckett 1997; Roberts and Hough 2002). Whatever the causation here – it seems likely that it moves in both directions – once certain popular attitudes and expectations are created, they in turn create significant electoral constraints. How directly they are registered in the electoral system (Barker 2009; Miller 2008), and hence exert discipline on governing parties, is therefore likely to be an important factor in explaining the institutional capacity of different systems to sustain moderate criminal justice policies.
In this context, it is significant that there is, empirically, an association between CMEs and proportionally representative (PR) electoral systems, whereas LMEs tend to have first-past-the-post, winner-takes-all systems (the key exceptions being New Zealand and Scotland: Lacey 2012). The policy-making autonomy of CMEs is constrained by the need to negotiate with groups incorporated in the governmental process. CMEs with PR systems are more oriented to effective participation in and contribution to policy making – at least for groups integrated within subsisting sociopolitical structures – than are LMEs whose electorate gets a one-shot say in policy making at election time. But this consensus-building dynamic may make the CMEs less heteronymous in the light of swings of popular opinion. While decisive winners of first-past-the-post elections in LMEs may feel relatively unconstrained by popular opinion early on in their terms, their unmediated accountability at the ballot box makes them highly sensitive to public opinion as elections loom.
What is more, as party affiliations among the electorate weaken, governments’ increasing dependence on the approval of a large number of “floating” or reluctant voters, who regard crime as a threat to their well-being, may feed into the political salience of criminal justice. Under the conditions attendant on the collapse of Fordism since the 1970s and in the light of the salience of increasing relative deprivation to the scale and the perceived seriousness of crime problems, there may thus be a stronger association between the politicization of criminal justice and the impact of penal populism in majoritarian, two-party LMEs such as the USA, with decisive implications for the harshness of punishment. In this context, the further empirical fact that PR-based CMEs are more likely to elect left of center governments and to display lower disparities between the best and worst off is significant (see Iversen and Soskice 2006). Electoral structure, in other words, has implications for both partisanship and the substance of political, social, and economic outcomes.
There is further reason to think that this difference in the electoral structure of LMEs and CMEs may have some important implications for upward pressure on punishment. As many commentators have observed, one of the developments which has fed the trend toward penal populism in several LMEs is the emergence of well-organized single-issue pressure groups, notably those representing victims of crime (Pratt 2007, Chap. 3; Gottschalk 2007, Chaps. 5–7). On the face of it, one would expect that single-issue political groups would find it harder to get their voices heard in a majoritarian, two-party system than in a PR system which incorporates a number of smaller parties. This expectation would not apply, however, where a particular single issue appeals widely to floating or reluctant voters. Such has been the case of crime in the USA over the last 30 years. As Simon (2007, pp. 26ff, 159ff) has shown, both the popularity of harsh criminal policy among median voters and the relative simplicity of enacting such policy – the lack of need, for example, to develop complex new bureaucracies to administer or implement increased criminalization – have proved a potent temptation to US politicians and other elected officials.
Furthermore, while concerns about crime reflected in victims’ movements may well find a footing in the PR environment, particularly among smaller parties who may hold the balance of power, their adoption and implementation will ultimately have to be negotiated out in the complex bargaining process typical of PR systems and will hence tend to be more insulated from the dynamics of emotive campaigns than is typical in the majoritarian systems. What is seen in the latter is a cycle of mutual reinforcement, grounded in a set of incentives conducing to politicians’ focus on single issues such as criminal justice which are, superficially, easy to demonstrate that they have acted upon, such action in turn leading to heightened public identification of the salience of crime problems and to heightened expectations of governmental capacity to resolve them through tough criminal policy. This dynamic is especially strong where both major parties adopt a tough stance on law and order (Newburn 2007). The scale and impact of this sort of cycle is vividly illustrated by the fact that, in addition to its unplanned expansion of the prison system, the British Labor government has been estimated to have enacted no fewer than 3,000 additional criminal offences in the 8 years between its election and the end of 2005 (Morris 2006).
It is also worth noting a further difference between the political systems to be found in LMEs and CMEs, itself correlated with the PR/majoritarian distinction. In most CMEs, deference to the expertise of the professional bureaucracy – that is, the civil service, often including not only policy advisers, penal system officials, and prosecutors but also judges – tends to be higher than in LMEs. This is in part because the coalition politics typical of PR systems imply a less polarized political environment in which governments feel less need to retain total control of policy making. By contrast, particularly in recent years, the tendency in majoritarian systems has been for governments to prefer to work with their own, politically appointed advisers, and to ignore the advice of technically neutral civil servants wherever this interferes with political expediency. Particularly in the UK, the increasing domination of parties by their leaders has fed this dynamic. This not infrequently leads to a situation in which pressure groups such as those representing victims of crime are constructed as the relevant “experts” for the purposes of consultation in the development of policy, weakening both an important constraint on ad hoc policy making and coordination with criminal justice professionals (Pratt 2007, Chap. 3; Simon 2007, Chap. 3). In LMEs, this feeds into a dynamic in which politicians’ decisions become ever less insulated from the flow of perceived public opinion – a factor which has been a crucial driver of penal harshness in several countries. In CMEs, by contrast, the strength of a professional bureaucracy, along with deference to expertise, have been identified by a number of scholars as conditions key to the maintenance of moderate criminal justice policies (Cavadino and Dignan 2006, pp. 35–36; Savelsberg 1994, 1999; Tonry 2007, pp. 31–32).
3. The welfare state
Another key difference between contemporary capitalist democracies lies in the institutions associated with the welfare state (Esping-Andersen 1990; 1996). Here again, political economies at relatively similar levels of development, characterized by broadly liberal-democratic political structures, have taken markedly different paths. In terms of Esping-Andersen’s famous typology, while countries with liberal welfare regimes like the USA and Britain have adopted neoliberal policies committed to “rolling back the state” and curtailing public expenditure (Hillyard and Tombs 2005), the Nordic, socialdemocratic countries have maintained their welfare states more or less intact (Pratt 2008a; Pratt 2008b), with Northern European countries such as Germany adopting a pattern closer, in terms of generosity of provision and scope of coverage, to their Nordic than to their British neighbors.
Among variables in political-economic structure, the welfare state has received most sustained attention from comparative criminal justice scholars. It is obviously plausible that the impact of relatively generous welfare provision on the reduction of poverty has a knockon effect on crime. Less obviously, there is evidence that it is also associated with levels of punishment. Downes and Hansen (2006) have shown, in a study covering 18 countries, that those spending a higher proportion of their GDP on welfare have lower imprisonment rates – a relationship which has grown stronger over the last 15 years. Similarly, Beckett and Western (2001, pp. 44, 48, 55; Western 2006) have demonstrated systematic differences among states within the USA, in which those with relatively low social welfare spending are also those with higher prison populations.
But the precise causal mechanisms here are unclear. Sometimes the argument takes a cultural form: the inclusionary instincts represented in generous welfare state policies are likely to be reflected in criminal justice policy. Beckett and Western (2001), for example, argue that welfare regimes vary according to their commitment to including or excluding marginal groups: the more inclusive systems exhibit both higher welfare spending and lower imprisonment rates. Albeit making some observations about the relationship between the welfare state and the structure of the economic and political systems, Pratt (2008a), in his recent analysis of “Scandinavian exceptionalism,” attributes the generosity of the Scandinavian welfare systems primarily to a “culture of equality” with long historical roots. But what explains this varying commitment to egalitarianism and inclusion and underpins the political support necessary to sustain it?
Clearly, long-standing institutional arrangements are typically articulated with, and stabilized by, distinctive cultural attitudes such as the strong Scandinavian commitment to social solidarity and equality (Bondeson 2005, p. 189). But there is also evidence that the distinctive structures of welfare states are articulated with the political and economic dynamics already discussed. In other words, it may be not just possible, but good economic sense for some countries to maintain generous welfare provision even in the face of increasing competition from countries who are not investing public resources in this way. Certain economic arrangements, in short, themselves foster a culture of solidarity or support for the welfare state – a culture which is in its turn important in sustaining the political support needed to sustain generous welfare institutions.
A range of explanations has focused on precisely such an articulation of the welfare state to the structure of the economy. Within a liberal market system in a flexible economy, governments have chosen to maximize incentives to rejoin the labor market – a strategy that has had sufficient plausibility with a critical mass of the electorate because of the high degree of transferable skills within the workforce. Within the labor markets of countries with less flexibility, where long-term investment in less transferable skills (as in Germany), or an extensive public sector providing employment for women and services for dual-career families (as in the Nordic countries), is still key to comparative advantage, it makes sense to give relatively generous support to workers who experience periods of unemployment, rather than encouraging them to retrain or to find work in new sectors of the economy. Generosity of welfare provision and relatively secure employment relations are, under certain conditions, just as good a basis for economic success and stability as flexibilization and welfare cuts. And though there has been some recent reduction of welfare benefits in several of the European and, to a lesser extent, Nordic countries, with generosity of provision in the countries like Germany depending heavily on status as an insider to the high-skill economy, the remaining differences between European welfare regimes remain significant and seem unlikely to be eroded in the near future (Hall 2007, p. 39; Iversen 2007, p. 278).
4. Constitutional structure: decision-makers, veto points, and constraints on criminalization
Beyond political and economic institutions, the constitutional structure which provides parameters for the institutional environment already considered, and for the legal system through which much criminal policy is implemented, may also be important in explaining national differences in criminal justice policy. Three such variables might be thought to entail systematic differences in countries’ capacities to develop and sustain moderate penal practices. These are the distribution of decision-making power among different actors; the structure of legal institutions, and in particular of the tenure and selection of the judiciary and prosecutors; and the impact of constitutional framework on the definition of crime.
The discussion of political systems above indicated that one important variable in shaping the reception of popular concern about crime into criminal justice policy is the degree to which political decision-making is insulated from the flow of electoral opinion. But a further factor seems likely to be important here. This is the distribution of veto points across the system, with consequent potential for checks and balances to be invoked, and for reactive policies to be blocked or delayed, thus leading to a more reflective and negotiated style of policy making.
On the face of it, such veto points might be taken to be correlated with federal as opposed to unitary systems and with bior multicameral as opposed to unicameral legislatures. But this is not inevitable. For example, in the USA, most criminal justice policy is developed at state level or even at city or county level, so that the federal structure cannot exert the sort of inhibiting power which it has in Germany. And in the bicameral legislature of the UK, the constitutionally privileged place of the House of Commons restricts the degree to which the upper House can act as a block on policy formation. This is not to say that, for example, US federalism has been unimportant to the way in which criminal policy has developed (Miller 2008; Stuntz 2001). The need to address multiple constituencies can, as in the case of campaigns to abolish capital punishment (Garland 2010), place barriers in the path of criminal justice reform, while the highly decentralized form of US government allows local politicians to emphasize popular issues the costs of which their own constituents will not have to bear (Soskice 2009; Lacey 2011; Stuntz 2011). And the creation of federal structures can itself feed upward trends in punishment: this appears to have been the case in the USA through both direct and indirect (via state-imitation) effects of the federal Uniform Determinate Sentencing Act and, in Europe, in recent EU initiatives arguing for cross-union statutory minima for certain serious crimes (Pratt 2007, p. 169).
There is scope here for a careful empirical analysis of the ways in which systems with more and less diffused structures of criminal justice decision-making have responded to external pressures toward penal severity. A priori, the distribution of veto points and the need to coordinate decision-making points in federal systems where key aspects of criminal justice policy have to be centrally or constitutionally determined would appear to be important variables. The size or scale of the system is also likely to be relevant. In relatively small jurisdictions like the Netherlands or Scotland, both the capacities for central negotiation and the intensity and influence of elite policy networks may also be important factors. They are differences which may favor either the stabilization of moderate policies via coordination between elite networks, as in the 1970s in the Netherlands, or rapid shifts of policy through precisely the same mechanism, as in that country in the late 1980s (Cavadino and Dignan 2006, p. 123). Leaving the question of scale aside, however, the key feature of the long-established PR systems, whose parties tend to represent sectoral interests, is their resulting orientation to negotiation across groups. This is likely to conduce to a wider distribution of veto or delaying points, and hence underpins an association between CMEs and checks on the politicization of criminal justice.
Second, it is plausible that the selection, training, and tenure of judges and other key criminal justice officials will have distinctive implications for the environment in which penal policy is developed and implemented. To take only the most obvious example, a system like that of the USA, in which many judges are elected, is one in which a key barrier between popular demands for punishment is, if not removed, seriously weakened. This becomes important under conditions in which criminal justice is highly politicized. We might draw an analogy here between the election of many US judges and the fact that the vast bulk of criminal cases in Britain are heard by lay magistrates. This arrangement would be unthinkable in the highly professionalized systems of Northern Europe or Scandinavia. While English magistrates are not answerable to popular opinion in the style of elected officials, they are less buffered by a professional expertise and culture. Their place in the administration of criminal justice suggests that relatively low importance attached to expertise may find its roots deep in the history of British sociopolitical arrangements rather than merely being a product of the recent dynamics of criminal policy.
In many Northern European and Nordic CMEs, the judiciary continues to be regarded as a key partner in the development as well as the implementation of criminal justice policy. In LMEs like the USA and the UK, by contrast, the rise of penal populism has seen an increasingly hostile and unstable relationship between government and judiciary. The judiciary conceives their independence as inconsistent with any overt incorporation in governmental negotiations, and the government is accordingly inclined to regard the judiciary as an irksome and even irresponsible thorn in the flesh of its criminal policy. Though constitutional or human rights structures such as the European Convention or the US Constitution may provide judges with some tools to resist certain government excesses of punishment or criminalization, these have tended to be relatively weak in the face of a determined executive with a clear legislative majority (Lacey 2009). In this context it is interesting that judiciaries in the Anglo-Saxon, common law, liberal market countries with strong traditions of judicial independence appear to have suffered a decline in public status and authority in recent years (see Simon (2007, Chap. 4); while their European, civilian cousins, traditionally of lower status and more intimately linked to the state bureaucracy, appear so far to have escaped a similar fate.
Third, systems exhibit markedly variable constitutional constraints on the content of criminal law and punishment. These constraints have deep historical roots. Whereas in most European countries, the process of constitutional modernization entailed a clear differentiation between criminal justice and administrative “police power,” in common law systems such as Britain and the USA, no such differentiation has ever been fully institutionalized (Dubber 2005; Whitman 2003). Legal and constitutional constraints on the substance (as opposed to the procedure) of both criminalization and punishment are, accordingly, weaker in these systems. Again, there is an association between this variable and the LME/CME distinction.
5. Institutional capacity to integrate “outsiders” Another key feature of contemporary societies is the increasing mobility of the social world from the late 1960s on. This mobility has a number of dimensions. In a wealth-valuing culture and flexible economy, with relatively high levels of education, there may be more mobility between social classes; in a globalizing economy characterized by transnational political structures like the EU, marked by relatively cheap international travel and mass communications, there is more geographical mobility. These developments have added new layers of complexity to one of the central challenges for any democratic system of criminal justice: that of “reintegrating” offenders into society and economy.
This is a complex issue. But it is an important corrective to what might the temptation to think that the highly coordinated systems of Europe and Scandinavia today are necessarily better placed to sustain democratically acceptable levels of penal moderation than their liberal market Anglo-Saxon counterparts. For the structure of this problem is significantly different in the two sorts of system. While the laisser-faire and individualistic culture typical of LMEs may well make it relatively easy to integrate geographical or “cultural” “outsiders” like recent immigrants wherever they find access to the labor market, the more intensively group- and skills-based system of the CMEs may well pose significant challenges in terms of integrating newcomers into the representative and decision-making structures which have helped to sustain a relatively moderate criminal justice policy with relatively high institutional capacity for reintegration. CMEs are, in short, good places to be incorporated insiders, but hard systems to enter from the outside (Lacey 2008, Chap. 3).
The comparative political-economic analysis of crime and punishment, using the tools of contemporary political science, is at a relatively early stage of its development. But it has opened up an extensive research agenda which promises to refine the understanding of how the dynamics of crime and punishment are shaped by forces external to the criminal process and of how those forces themselves relate to patterns of institutional structure and incentives which vary systematically across national borders. At a time at which much criminal justice scholarship is preoccupied with globalization, institutional approaches grounded in comparative political economy are a telling reminder that vast differences between criminal justice systems of the developed world continue to obtain, as well as a crucial resource for understanding how they are produced and, accordingly, for assessing whether they are likely to persist.
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