Institutional Theories of Punishment Research Paper

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Longand midterm changes in punitive attitudes and penal practices can only be understood by taking complex interactions between multiple social forces into account. Statistical analyses show that many factors are at work (Jacobs/Jackson 2010), while theoretically informed studies provide an in-depth understanding of the role played by specific conditions such as everyday life experiences (Garland 2001), including economic conditions and racial/ ethnic conflict (Wacquant 2009), elite strategies (Beckett 1997; Simon 2007), and long-term cultural patterns (Melossi 2001; Savelsberg 2004; Whitman 2003). Recent literature, following earlier suggestions (Savelsberg 1994, 1999), has drawn special attention to the institutional arrangements under which ideas regarding crime and punishment are generated and penal decisions are made (Barker 2009; Campbell 2011; Garland 2010; Lacey 2008; Miller 2008; Page 2011; Savelsberg et al. 2004; Savelsberg and Flood 2011; Schoenfeld 2010; Sutton 2000; Whitman 2003). This research paper begins with an illustration of what is to be explained: massive divergences in midterm trends in punitive attitudes and penal practices, illustrated for Europe and the United States. The main body of this text introduces competing (and mutually complementing) factors and approaches, each supported by distinct literatures, that seek to make sense of penal variation across time and space. While each of these approaches proves to be insufficient by itself, a synthesis is more promising, especially if it takes institutional conditions seriously.

What Is To Be Explained: Cross-National Patterns And Trends

Differences between crime concerns, penal attitudes, and intensities of punishment in Europe vis-a`-vis the United States are substantial. The United States of the last third of the twentieth and the early twenty-first centuries is home to considerable fear of crime. Such fear and related cognitions inform not only adaptations in everyday behavior but also political attitudes and behavior. They are a precondition for the extraordinarily high rate of public support for capital punishment that has been hovering between 70 % and 80 % for most years since the late 1970s, for America’s continuing use of the death penalty (the only Western country), albeit not in all of its states, and for rates of imprisonment that are unparalleled in American history and in any Western democracy.

A closer look shows that punitive attitudes and tough punishment practices are not a constant feature of the United States. Populations of other countries, for that matter, are not consistently mild-minded. A comparison of longer-term trends in support of capital punishment in Germany and the United States, for example, shows that both populations strongly supported the death penalty in the immediate post-World War II era. Support among Germans was even higher, despite (or because) of the most recent experience of the murderous Nazi regime. The 1960s witness a considerable weakening of support in both countries. Analyses for Germany show that this decline is primarily the result of cohort effects, only secondarily of period effects. It reaches new lows in the 1980s and 1990s. The United States, on the other hand, experience rising support of capital punishment, beginning in the mid-1970s, reaching new heights within a few years, and remaining at a very high level ever since.

Penal practice shows some parallels to, but also marked differences from, attitudes. Rates of executions in the United States, for example, are closely associated with trends in public opinion. They declined through the 1960s until a Supreme Court-mandated moratorium brought executions to a standstill from 1968 through 1976, but they increased steadily from there through the late 1990s to almost 100 executions per year in 1999, followed by a drop in most recent years. In European countries, by contrast, the death penalty is now abolished. In Germany, for example, it has been unconstitutional since the foundation of the Federal Republic in 1949, a time when public support for the death penalty was still high. Here, public opinion followed political decisions and constitutional norms, rather than vice versa.

The trend line for incarceration rates in the United States shows a similar development to that of executions. It decreased through the early 1970s and then began its dramatic increase that culminated in levels never seen before by the turn of the millennium (from just above 100 per 100,000 population to a rate of above 600). The new increase beginning in the 1970s is not just associated with the renewed support for the death penalty but also with increases of other indicators of punitiveness. For instance, a growing number of people supported the proposition that courts in their region are too lenient in their practices.

In Europe, on the other hand, long-term imprisonment rates were relatively stable and less in line with changes in public opinion. Consider again Germany. Even though the last decade of the twentieth century shows a marked 50 % increase in imprisonment rates, this trend built on a historical low of around 50 inmates per 100,000 population in 1992. Recent increases in punitive attitudes among Germans have been diagnosed, but they are relatively moderate (Reuband 2003).

How can we explain the syndrome of fear, punitive attitudes, and increasingly severe penal practice in the United States? What about the long-term trends toward leniency and recent moderate shifts in the opposite direction in Europe? Can we develop a theory that is congruent with these patterns and general enough to explain distinct trends in different countries alike? Several explanatory approaches have been offered in recent years, each with its own promises and limits.

Explanatory Controversies: Toward Multiple Factors

Crime As A Basis For Punitiveness?

Looking at the extraordinary rates of punitive attitudes and practices in the United States, some point at high American crime rates as the likely cause. Yet, American crime rates for most offenses are quite comparable with rates in other Anglo-Saxon countries and not dramatically higher than those in most European countries. Important exceptions are particular types of violent crime such as robbery and homicide. These are concentrated, however, in poor inner-city ghettos, where dealing with illegal drugs constitutes one remaining opportunity to earn a living after the cities began to deindustrialize in the 1950s. When conflicts develop in the world of illegal markets, the resolution of resulting grievances is not left to the state’s monopoly of force, but is carried out through self-help, thus contributing to high rates of violence in these areas.

Punitive attitudes, on the other hand, are highest not among those who are most exposed to the risks of violent crime but rather among residents of America’s suburbia. Also, the increase in punitive attitudes in the United States is far from synchronized with crime trends. Similarly in Germany, while crime rates increased for the first half of the post-World War II era, support for capital punishment declined during this period. Patterns and trends of crime and victimization risk thus neither offer a simple and direct explanation for punitive attitudes in the United States nor for international differences. In short, crime rates are not direct determinants of punishment trends, especially not in Europe. It is still conceivable though that they play an indirect role once translated into fear through different ways of cultural processing and political instrumentalization (Garland 2001). Such processing is thus to be considered below.

National Culture?

Others point to cultural particularities of different countries as a basis for their patterns of punishment. For the United States, it has been suggested that a profoundly religious culture with clear distinctions between “good” and “evil” may dramatize evil and thus produce fear and punitive attitudes. Research finds some supporting evidence. For example, judges who are members of fundamentalist congregations tend to sentence more harshly than other judges; also members of fundamentalist Protestant congregations are more likely to support imprisonment, corporal punishment, and capital punishment (e.g., Grasmick et al. 1993). Not just religion, also other aspects of culture may encourage punitive attitudes. Some suggest that American individualism advances an individual as opposed to collective attribution of guilt, thus encouraging punitive rather than social reform responses.

A closer look shows, however, that reference to enduring national cultures by itself does not suffice. Historically, the USA is the country in which the Quakers promoted the replacement of corporal punishment for the sake of a rehabilitation-oriented prison system already in the early nineteenth century. Also in the nineteenth century, Gustave de Beaumont and Alexis de Tocqueville traveled to America to learn about this system and its potential benefits for Europe. Further, the American imprisonment rate varied considerably in the course of the twentieth century, and Americans’ support for capital punishment tended to fall below that of Germans for much of the 1950s and 1960s. A simple reference to American culture is thus equally misleading as the reference to American crime rates when we seek to explain fear and punitive attitudes and practices.

Reference to a long-term culture as a straightforward explanation of punitiveness elsewhere is just as simply cast into doubt. Consider again Germany as a convenient example. The post-World War II era of the Federal Republic experienced considerable variation in support of capital punishment. A look beyond this Republic’s history reveals the most dramatic shifts in penal attitudes and practices. While we do not have good measures for public attitudes during the Nazi era or for the German Democratic Republic (the Communist part of the divided Germany), we do know that penal and police practice in the former were unspeakably harsher and in the latter considerably more severe than in the Weimar Republic or in the Federal Republic. Again, enduring national culture surely is unable to provide a straightforward explanation of penal practices and probably not for penal attitudes either, neither for Germany nor for the United States or any other country.

And yet, the role of culture should not be discarded altogether. Instead, the concept of culture as “tool kit” provides help, a notion developed by sociologist Ann Swidler. A tool kit is a collection of tools from which actors can draw in a situation of need. It is then decisive what tools are available in a given national context. Whitman (2003) suggested that aristocratic sensibilities played a part in Europe’s historically less shaming and ferocious punishment regimes. Others highlight dominant religious traditions in different countries that provide distinct penal tools (Savelsberg 2004). More broadly, Philip Smith (2008), in his Punishment and Culture, develops a neo-Durkheimian argument that alters us to notions of the sacred, of rituals, and of myths that feed penal practices. The question then arises: What types of myths, sensitivities, religious doctrines, and other tools are available in different societies?

Culture as a tool kit thus means that certain tools are available and can be drawn on depending on a given situation. Cultural tools are necessary but not sufficient conditions of the use of penal strategies. Further, tools also need to be legitimate. It is noticeable that the use of force by government appears to have been delegitimized in countries such as Italy and Germany after the brutal misuse by the Fascist and Nazi regimes (albeit with a time lag) but that it remained intact in liberator and victor countries (Melossi 2001).

In short, long-term cultural traditions affect punitive attitudes and practices in complex interaction with the shorter-term legitimization of the state’s use of force. They further interact with actions by concrete actors, such as elite campaigns and support by the populace that is associated with concrete living conditions.

Concrete Actors 1: Conservative Elites

The social science literature has shown that a focus on concrete actors is highly promising. Katherine Beckett’s (1997) work, for example, successfully links increases of punitive attitudes and practices to activities of members of conservative elites, beginning in the 1960s. Her historical account quotes from political campaigns in which conservative Southerners equated support for the civil rights movement (as expressed in tactics of passive resistance and limited law violations) with the promotion of lawlessness generally to thus explain the dramatic increase in crime rates during this period. Charles Whittaker, a former US Supreme Court Justice, for example, argued that the 1960s crime wave was “fostered and inflamed by the preachments of self-appointed leaders of minority groups … [who told their followers] … to obey the good laws and to violate the bad ones… This simply advocates the violation of the laws they do not like… and the taking of the law into their own hands” (as quoted in Beckett 1997:31). More recent work has thus rightfully highlighted racial dimensions of the punitive turn in the United States (Wacquant 2009), especially in the context of the “war on drugs” (Tonry 1995).

Conservatives applied the same logic when they fought President Johnson’s expansion of the welfare state through his Great Society programs. A quote from a 1964 speech by the Republican presidential candidate Barry Goldwater may serve as an illustration: “If it is entirely proper for the government to take away from some to give to others, then won’t some be led to believe that they can rightfully take from anyone who has more than they? No wonder law and order has broken down, mob violence has engulfed great American cities, and our wives feel unsafe in the streets” (as quoted in Beckett 1997:35).

Insights gained from such historical narratives are supported by evidence from systematic data collection and hypothesis testing, including multivariate tests of the relationship between political initiatives, media coverage, and public perception. Examining when respondents to public opinion surveys consider crime or drug use the most important problem the nation faces, Beckett’s (1997):14–27 work yields four insights: First, the reporting of drug and crime issues by the media and their ranking in public opinion surveys are highly uneven across the years, even within 2–4 year spans. Second, neither media reporting nor public opinion is clearly associated with the actual seriousness of the problem as measured by the crime rate and the incidence of drug use. Third, the fluctuations of media reporting are closely associated with political campaigns that highlight crime or drug issues. Fourth, public opinion tends to be motivated by media reporting. In short, the causal path leads from elite strategies through media reporting to public opinion. Americans tend to think of crime or drug use as the most important problems when politicians raise these topics in their campaigns and when media report about the issues raised by politicians. Yet, an important factor is missing from this account which is now to be addressed.

Concrete Actors 2: Everyday People And Their Fears

New critics within the constructivist tradition of social problems research, with which authors such as Beckett are affiliated, have noted that the public is not always receptive to the campaigns of political elites. Such campaigns may thus be necessary, or at least important, conditions of social problem careers, but not sufficient ones. Elite campaigns are effective only if they touch a sensitive nerve of the public. This sensitivity is a central theme in David Garland’s (2001) book The Culture of Control. Garland argues here that people, under conditions of late modernity, are exposed to extraordinary challenges that produce severe anxieties. Old certainties about stable jobs, streamlined work careers, and social security have been lost. Arrangements of everyday life become more complicated as people are confronted with longer commutes; more single parent or dual income situations; longer periods of study, training, and retraining with less secure career expectations; and a weakening of the welfare state’s safety net. In addition, and in line with routine activity arguments, public space is ever less secured by informal social control, which helps explain actual increases in crime rates in most Western societies in recent decades, and has thus contributed to further insecurities among the public. In short, Garland argues that we can understand the public’s receptivity for punitive elite campaigns only against this background of general insecurity under conditions of late modernity.

Such arguments are supported by empirical investigation. Social psychologist Tom Tyler and collaborators examine public support for the “three strikes” law in California (Tyler and Boeckman 1997). This well-known law, passed through a public referendum, demands that offenders convicted of a third felony offense be given a life prison term with no possibility of parole. Tyler’s research indicates that California’s “three strikes” law was most strongly supported not by crime victims but by those who feel that the basic foundation of their social life has become undermined as the stability of their families is threatened or as immigrants move into their neighborhoods.

Conditions of everyday life and resulting public sensitivities must thus be taken seriously when we seek to explain punitive attitudes generally and people’s receptivity to punitive campaigns by conservative elites specifically. Yet, this argument too faces an important limitation. The United States is not the only country whose residents experience conditions of late modernity. Consider the small and seemingly peaceful alpine country of Austria where, according to new survey results, the majority of young people no longer believe that their retirement benefits are secured. In some of its states, almost half of all children are born out of wedlock. Or consider Germany where family life has abandoned its traditional and standardized patterns. Statistical trends show an almost double divorce rate by the end of the twentieth century compared to two decades earlier. In the same time span, the number of non-married cohabitating couples quadrupled, accompanied by a massive increase in the rate of out of wedlock birth. Finally, the participation of women in institutions of higher learning and in occupational life has increased dramatically in most European countries, albeit not to the same degree as in the United States.

In short, life has become less certain and life courses less predictable in the United States, in other Anglo-Saxon countries, and in continental European countries such as Austria or Germany. Late modernity has arrived in all of these places. Yet, most countries do not show the same intense increases in punitive attitudes and practices as do the United States (for common law countries, see Sutton 2000).

Institutional Particularities 1: The Weight Of Knowledge Markets In The United States

The puzzle of country-specific responses to the challenges of late modernity can only be solved if we consider nation-specific institutions that process the insecurities people experience, that produce knowledge and ideas on how to respond to these insecurities, that promote or inhibit attitudes, and that channel those processes in the political and judicial worlds where punitive decisions are made (Savelsberg 1994). Such institutions differ considerably even across Western style democracies. Consider mass media as one institution through which information and knowledge are generated and diffused. Mass media in the United States are largely steered through market mechanisms, while most European countries, at least until a few years ago, were served by parallel public radio and television stations. Mass communication research has shown that market-driven media tend more toward dramatized and sensationalized presentation of hot news items, including crime, thereby enhancing fear of crime and cultivating punitive attitudes.

Further, public opinion surveys have been institutionalized in the United States for many decades. Media regularly report survey results back into the public, thus contributing to a positive feedback slope that further intensifies public sentiments. The regular publication of public opinion survey results in mass media has become more common in European countries as well; yet, it was the exception for much of the post-WW II era.

Institutional arrangements even in the world of scholarship as it contributes to knowledge about crime and punishment open up this field to market pressures much more in the United States than in European countries. The resource distribution to universities and academic departments depends on how well they do in the competition for student enrollment and research grants. Signs of competitiveness are annual rankings of department members according to their achievement in research, teaching, and service and the rankings of academic programs and universities alike that are widely known across the country. It is not surprising then that the past decades of growing public concern about crime have also witnessed a rapid growth of specialized programs of criminology and criminal justice studies. This specialization has been partly driven by funding from Justice Departments and by the creation of demand for higher education among law enforcement personnel.

This institutional adaptation of academia to concerns of its environment has also resulted in the incorporation of punitive ideas. Content analyses of large sets of scholarly journal articles on issues of crime and crime control in leading sociology and criminology journals, combined with in-depth interviews with scholars, show that research in specialized programs is more closely oriented toward themes and theoretical perspectives that dominate in the increasingly conservative political sector. This effect is further enforced where research is funded by political institutions (e.g., Savelsberg et al. 2004; Savelsberg and Flood 2011). These findings may partly be due to the facts that funding has shifted away from (1) departments dealing with health, housing, or human services to the Justice Department and (2) from researcher initiated to strategic funding programs. While comparable studies do not exist for other countries, it is likely that less competition-oriented European academic institutions will not adapt as readily to their political environment as their American counterparts do.

Institutional Particularities 2: The Weight Of Political Markets In The United States

Not only institutions of knowledge production but also institutions of political and legal decision-making play crucial roles in the unfolding of penal practice. In a recent series of publications, Nicola Lacey (e.g., Lacey 2008) directs our attention toward the weight of political decentralization, the dynamics of different electoral systems and cycles. Her work leads her to challenge the notion that globalization leads to a simple convergence of criminal justice policy across nation states. Instead, she stresses that several nation-level institutional and cultural particularities filter global processes, dislodging them before they prove effective at the national level.

Applying these insights to a European-US comparison informs us that political institutions too are more market driven in the United States (Savelsberg 1994). One decisive factor is the relatively weak position of political parties that are not guaranteed a place in the American constitution, in contrast to some European countries. Candidates for elected office, for example, who are selected by the public in primary elections in the USA, are chosen through party committees and assemblies in Europe. American political candidates who seek to advance their political careers thus have to orient their positions at least as much toward opinions and sentiments of the electorate as toward enduring positions of their party. Not only legislators, but also heads of the executive branch, president, and governors alike, are elected through direct popular elections, not through a vote within the legislature as is the case in parliamentary democracies. Again, public opinion is more likely to translate into political decision-making in the United States. Further, high-ranking civil servants in the USA are much more frequently political appointees, selected by the president. They will return to their prior positions in the business world, academia, foundations, or law firms once the administration changes. Here too public sensitivities make their way into public administration more easily than in most of Europe. Finally, in the judicial branch of government, the public is represented in court through the American jury system, and most prosecutors and judges are also selected through popular elections. They depend on reelection if they wish to keep their position for a subsequent term. It is likely that such judges and prosecutors will orient their decisions more toward concerns of the public than their life tenured civil servant colleagues in most continental European countries.

It is decisive that all of these institutional spheres are more open to adapting to public opinion in the United States than in Europe. As a result, anxieties and punitive public attitudes are more likely to be reflected in the production and diffusion of knowledge and in political and legal decision-making. And they become communicated back to the public through a positive feedback slope to thus reinforce the initial expression of public opinion. Sutton’s sophisticated and theoretically guided statistical analyses provide empirical support for this type of institutional argument in his comparative study of common law countries (Sutton 2000). Such institutional arguments are not meant to answer the “chicken or egg” question as to what comes first, public opinion about crime and punishment or punitive programs. It is decisive instead that those relatively “open” institutions of knowledge production and decision-making characteristic for the United States tend to lead to a mutual reinforcement of both poles, while Europe’s relatively “closed” institutions are more likely to support stability.

Two modifications to this typological cross-national argument are needed. First, the American War on Crime has contributed to a transformation of America’s democratic institutions, as Jonathan Simon (2007) has aptly documented. Prominent among them is a shift toward the use of executive power. Further, Joshua Page (2011) has powerfully demonstrated for the case of California that the imprisonment boom has strengthened an important group in the penal field, the corrections officers union. In turn, this union constituted an effective lobbying group on behalf of the passage of penal laws.

Second, the above argument, focusing on nation-level characteristics, has been challenged in recent years as states below the nation-level show remarkably different trends in their penal practice. David Garland (2010), in his recent book on capital punishment, highlights the fact that the United States, while retaining the death penalty longer than other Western democracies, is constituted by states, some of which abolished this penalty when no European country even considered abolition. It is exactly the decentralization of political power and localized decision-making that account for this country simultaneously being an early abolitionist and a late retainer of the death penalty.

Rightfully then, others have taken the next step by studying punishment at the state level. A comparison of penal practice in the states of California, New York, and Washington shows, for example, that state-level differences in political institutions and participatory practices help explain the distinct penal patterns in these three states (Barker 2009). Specifically, Barker argues that “polarized populism” in California contributed to a retributive penal regime. This pattern starkly contrasted with Washington State’s “deliberative democracy” that fostered de-escalation and New York’s “elite pragmatism” that advanced a managerial practice of punishment. Others have explored institutional particularities of individual states to explain their specific patterns of punishment (e.g., Lynch 2010 on Arizona; Schoenfeld 2010 on Florida). Campbell (2011) finds for Texas that a period of unsettled and contested change generated a highly punitive penal code and created an additional layer of prison facilities to manage lower-level offenders. His analysis suggests that the patterns he identifies reflect institutionalized conflict between state and local governments.

Campbell further alerts the reader to interactions between such institutional arrangements and contextual factors that are deeply embedded in the history of the state. Finally, examining differences in the institutionalization of civil society between the local and the national levels, Miller (2008) shows that anti-punitive interest groups are generated at the local level, where residents are in fact most affected by crime but where political pressure has little influence on penal policy making. State-and nation-level organization of interests, on the other hand, representing those least affected by crime, tends to be punitive and effective.

Clearly thus, institutional arrangements, characteristic of particular levels of government, and even of particular states must be taken seriously. This does not mean, of course, that higher-level factors become obsolete. The next step in this institutional line of scholarship should thus aim at theorizing – and examining empirically – the interaction between global-, national-, state-, and local-level institutions as they jointly filter social structural and cultural forces and thus shape penal practices.

In short, a growing body of literature has shown that institutional arrangements are a crucial factor in the equation that explains practices of punishment. Open institutions, at least in some contexts, tend to communicate public concerns and punitive demands into legal and political decision-making. Yet, the question remains unanswered why people under conditions of insecurity, provoked by the strains of late modernity, resort to punitive demands. It is not at all certain, after all, that punitive strategies will actually create security and improve living conditions. Much to the opposite, evidence indicates considerable destruction of human, social, and cultural capital as a consequence of massive imprisonment. Alternative responses to insecurity such as increased unionization or demand for new welfare protections may be much more effective in fighting insecurity. Here, institutional arguments need to link back to the notions of tool boxes and interested actors discussed above. Open institutions are especially receptive to punitive turns where popular pressure suggests the use of punitive tools and where political leaders and members of the judiciary have an interest in using these tools.

Institutional Change And Transnational Convergence?

Given the impressive differences between Europe and the United States in terms of cultural repertoires, institutional arrangements, and social structure, should we still see a convergence as many globalization theorists would predict? There are some reasons to follow their argument and even stronger challenges that caution us.

First, institutions in Europe have been undergoing considerable change. The safety net of the welfare state is weakening and some functions are being passed on to the market, even if changes in Europe are much slower and meet more resistance than they do in the United States. Also, the weight of public radio and television stations has been declining over the past two decades as private channels, operating under the pressure of markets, have become more prominent. Simultaneously, the number of programs that address crime, especially violent crime, in movies and reports has multiplied. Consumers of such programs tend to overestimate crime as a problem, perceiving serious increases even for types of crime that have been on the decline as documented by German criminologist Christian Pfeiffer. Finally, leading politicians are increasingly exposed to public pressure due to a growing media presence in combination with increased public opinion polling. They are thus likely to be more oriented toward public opinion.

Finally, institutional shifts in Europe are supplemented by one change of a different sort. New cohorts of judicial decision-makers are socialized under conditions of late modernity and new institutional arrangements. Future cohort studies may measure effects of this turnover in judicial personnel on changing penal practices in Europe.

Despite such changes, however, many institutions in Europe maintain their distinct character and continue to differ markedly from those in the United States. The role of public media is still more prominent in Europe. Platform parties remain strong. Candidates for political office continue to be selected by parties, rather than by the public in primary elections. Heads of the executive branch continue to be elected by the members of parliaments rather than in direct popular votes in most countries. Prosecutors and judges still do not get elected by the general public; the proposal of such selection mechanism would in fact continue to appear strange to most Europeans. Due to these institutional specifics, I expect that increases in punitiveness in Europe will not reach American dimensions. Empirical opinion data seem to support this contention as recent studies by German sociologist Karl-Heinz Reuband (2003) have shown. The percent of residents of the (old) West German states who demand prison terms in response to burglary convictions, for example, increased from 13 % to 19 % between 1989 and 2002. Fifty-nine percent demand community service (down 1 %), 7 % suggest fines (down 2), 10 % probationary terms (down 2), and 5 % “other” penalties (up 3) (others “don’t know”). The increase in demand for prison terms is surprisingly modest in light of the advent of late modernity, a high rate of unemployment for much of the 1980s and 1990s, the burden of the 1990 German unification with its cultural clashes and dramatic demographic and economic transformations, and the institutional changes sketched above. Each of these factors by itself might, according to substantial bodies of social science literature, result in massive increases in punitiveness, was it not for the continuing features of Europe’s institutional outfit.

In line with these observations about public opinion, the 50 % increase in German imprisonment since 1992, beginning from a historic low, and similar prison growth in other European countries, has been significant but modest compared to the American experience of recent decades, where the 1970s and the 1980s each experienced almost 100 % increases in imprisonment rates; the 1990s, despite steep declines in serious crime, saw another increase of around 50 %. Again, distinct cultural repertoires and institutions and important institutional differences in the legislative, executive, and judicial branches of government are likely to account for this contrast between the USA on the one hand and Germany (and most European countries) on the other.

Concluding Thoughts: Toward Synthesis

Punitive attitudes and practices, especially pronounced in the United States, have been increasing in Europe as well. Changes in crime are only a very limited and indirect explanation for this trend. Crime needs to be culturally processed before it can cause anxiety and punitive attitudes. Conservative elites may play a major role in this process as the American case indicates. Their effect, however, is partly contingent on the growing insecurity of many segments of the population under conditions of late modernity. Both effects of elite strategies and of conditions of late modernity on punitive attitudes and practices have been shown by researchers in the United States.

Yet, punitive responses to insecurity are not a natural outcome. They are more likely where respective cultural repertoires are available and legitimized, which (during the post-World War II period) seems to apply more to the United States than to Europe. One additional factor, too frequently overlooked in earlier scholarship, is the profoundly different institutional arrangements in the United States vis-a`-vis most continental European countries. This applies to institutions for the production and dissemination of knowledge as much as for institutions of political and legal decision-making. The more open political and legal institutions are for public sentiments, the more will public concerns affect political and legal decision-making. Anxieties will often not be calmed by punitive decisions, but instead may even be reinforced as the American case seems to indicate. This does not mean, of course, that democracy accounts for punitiveness but that some forms of democratic institutions may have that effect. Autocratic regimes, in fact, are characterized by particularly severe and arbitrary practices. Fortunately, the earlier neglect of institutional forces has been corrected by a wave of recent research at the national, state, and local levels. We now face the challenge of understanding the interaction between global forces and national, state, and local institutional conditions.

In sum, an appropriate theory of punitive attitudes and practices must be conceived as a multifactorial, historically, and institutionally grounded theory, as Max Weber would have suggested. Such a theory must take seriously crime, changing living conditions, elite strategies, cultural repertoires and experiences with the state’s use of force, and finally institutional patterns through which knowledge is produced and diffused and through which decisions on punishment are made.


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