Penal populism

According to John Pratt, a criminologist at Victoria University, Wellington and international authority on penal populism, the original concept began in the work of Sir Anthony Bottoms a criminologist at Cambridge University. In 1995 Sir Anthony coined the term ‘populist punitiveness’ to describe one of the key influences which he saw at work on contemporary criminal justice and penal systems. It was intended to convey the notion of politicians tapping into and using for their own purposes, what he believed to be the public’s generally punitive stance towards anyone committing crime. The term changed to 'penal populism' when Julian V. Roberts of Oxford University stated that ‘penal populists allow the electoral advantage of a policy to take precedence over its penal effectiveness.”

In France, this concept was popularized by Denis Salas, judge and university fellow, who defines it as a "sympathetic discourse towards the victims", which leads to a perversion of justice.[3] Salas says that in France, penal populism has led to a plethora of new laws designed to achieve an unrealistic or utopian goal — a society where there is no risk. He says many new criminal statutes have been passed which can be traced to their impact on public opinion, rather than their actual effectiveness at reducing crime.

Underlying calls for a tougher approach on crime is a belief in the theory of deterrence - that the tougher the punishment is for a particular offence, the less likely people are to commit that particular crime. Programs such as boot camps and “scared straight” programs provide 'tough' punishment for teenage offenders — relying on deterrence theory. "Three strikes" policies in New Zealand and the United States are also based on the threat, and on actual, long term incarceration of offenders.[4] Belief in the theory of deterrence also requires belief in the ability of potential offenders to make rational choices. 'Rational choice theory' argues that an individual will only be deterred against a particular course of action if they weigh up the pros and cons and realise that the severe punishment that lies in wait (combined with an assessment of the likelihood of being caught) makes the crime not worth committing.

However, the evidence suggests that increasing the severity of a punishment does not have much deterrent effect on crime, while increasing the certainty of punishment does.[5] Clearly, enhancing the severity of punishment will have little impact on people who do not believe they will be apprehended for their actions. A study by Canadian criminologist Paul Gendreau brought together the results of 50 different studies of the deterrent effect of imprisonment involving over 300,000 offenders. The report said: "None of the analyses found imprisonment reduced recidivism. The recidivism rate for offenders who were imprisoned as opposed to given a community sanction was similar. In addition, longer sentences were not associated with reduced recidivism. In fact the opposite was found. Longer sentences were associated with a 3% increase in recidivism. This finding suggests some support for the (opposing) theory that prison may serve as a ‘school for crime’ for some offenders".[6]

Until the 1960s, criminal justice in western democracies involved primarily only two parties, the state and the offender. The rise of victims' movements in the second half of the twentieth century thrust a new, and until now largely forgotten, player into the justice arena. Initially, victims' groups provided support and counselling services to victims of crime, while the state began providing financial compensation and restitution. As the movement became more organised, the views of victims' groups became institutionalised through a variety of mechanisms such as victim impact statements and victim involvement in parole board hearings. In the United States, notification schemes such as Megan's Law, which requires authorities to make information available to the public regarding registered sex offenders, were also part of the process.[7]

Groups like Citizens United for Safety and Justice in Canada, Justice For All in the United States and the Sensible Sentencing Trust in New Zealand were often strident and vociferous although their spokespeople generally represent only a minority of crime victims — usually those in sensational murder cases.[8] Such groups rely on populist appeals to 'common sense’ rather than evidence, research and analysis — which makes them attractive to the sensational approach increasingly adopted by the media.

In New Zealand, the Sensible Sentencing Trust has had a significant impact in the media and on the political process — although the Trust does not mention victims in its mission statement which is about protecting the 'safety for all New Zealanders from violent and criminal offending'. The Trust is headed by Garth McVicar, a farmer from Napier.

Full front pages of Japanese newspapers about the 2014 AKB48 handsaw assault

The role of the media is pivotal in shaping perceptions about the level of crime in society and promoting populist causes. In Anglo-Saxon countries in particular, the tabloid media tend to focus on stories about violent crime, especially when there are lurid or unusual circumstances. In Britain, the extensive coverage given to the ten-year-old killers of James Bulger is a typical example. In New Zealand, 12-year-old Bailey Junior Kurariki received similar media attention for years[9] after his involvement in the death of Michael Choy, who was bashed to death as he delivered a pizza.

Professor Pratt argues that the way in which penal populism takes hold is through an array of law and order lobby groups making use of high-profile murders like these to generate fear and push for tougher sentences. The outcome is that the tabloid press, talkback radio hosts and callers, right-wing think-tanks, victims groups and some evangelising police chiefs spread the message that the solution to crime is 'zero tolerance'. As these groups gain access in the media, they have become increasingly influential on government policy.

New kinds of technology, including social media have also played a role. Increasingly information is conveyed in brief 'sound bites' so that it becomes something between information and entertainment. This makes 'the news' more susceptible to simplistic and populist explanations at the expense of more in-depth analysis and the seemingly indigestible opinions of academics and experts. Pratt argues that as a result, the influence of academics, senior civil servants, penal reform groups and judges who collectively make up the 'criminal justice establishment' has steadily declined.[10]

The media enables concerned citizens to pick up images of criminal events — the perpetrators, the victims, motives, and sensational details of violent crimes; interpersonal communication and internet based social networks add to the dissemination of information. Fear may be generated if the individual identifies with the described victim, or feels that their own neighbourhood bears resemblance to the one described; then the image of risk may be taken up, personalised and translated into personal safety concerns.[11] The media sometimes reports fear of crime through broader concerns about neighbourhood breakdown, the loss of moral authority, and the crumbling of civility and social capital.[12]

Often there is a noticeable difference between the perceived risk of becoming a victim of crime and the statistical probability. However, hearing about events in the media or knowing others who have been victimised increases public perception of the risk of victimisation.[13] In some western countries, crime accounts for up to 25% of news coverage.[14] The formation of a ‘fear of crime' feedback loop allows more citizens to be surveyed as fearful, more politicians to be able to use crime fear as a political issue, in an ever increasing spiral that crime is out of control.[15]

See Fear of crime for more information.

Total incarceration in the United States by year

In those countries where penal populism occurs, it generally leads to an increase in the prison population. According to Pratt, countries such as New Zealand, Great Britain and the United States have been particularly affected by penal populism.[16] Roberts reports that it has also had a significant impact in Canada and Australia.[17]

Over the last 25 years, prison populations have increased significantly in these countries despite widespread declines in reported crime, evident in both recorded crime statistics and victim surveys.[18] In the United States for instance, the rate of imprisonment has risen dramatically despite a National Crime Victimisation Survey in 2007 which showed that property and violent crime rates in the United States were the lowest they had been since 1973. In England and Wales, between 2006 and 2008 the prison population increased by 7% despite the British Crime Survey revealing in 2008 that crime was the lowest it had been in since 1981 when the victim survey was first published.[18]

In New Zealand the prison population went from about 60 people per 100,000 of population in 1950 to nearly 200 per 100,000 in March 2011. It escalated dramatically from 2000 onwards leading to the building of five new prisons. This happened at a time when New Zealand's crime rate was declining and number of murders committed each year halved.[19]

• Fear of crime
• Law and order (politics)