Abstract
This article discusses “penal populism” and its conflict with criminological expertise. It considers the proper balance between professional expertise and community sentiment in the formulation of crime control and penal policy—especially in respect of policy measures where moral rather than instrumental considerations are involved. It raises theoretical questions about the nature of “public opinion”—does it exist other than as an artifact of survey instruments?—and its proper role in a democratic polity. And it considers the professional responsibility of criminological experts in relation to policy formation and political debate. The performance of public health experts during the COVID pandemic is presented as an instructive case in point. Can criminology establish itself as a credible form of social scientific knowledge worthy of public trust? And how should criminologists comport themselves when engaging with questions of public policy and political controversy?
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
At least in Great Britain: Loader (2006) discusses that earlier era under the rubric of liberal elites and “Platonic Guardians.” And in his foreword to a book on penal populism, Nigel Walker (2003: v) remembers “an era when the only feature of penal policy that politicians discussed was capital punishment, and even that was forgotten at election time.” According to Loader, Home Office civil servants in the 1960s and 1970s aimed to “manage” public opinion on crime; their “governing disposition” being that “untutored public sentiment towards crime is a dangerous thing – an object to be monitored ad contained, steered down appropriate paths, taken on and argued with where necessary…but not to be followed, still less given governmental endorsement or expression” (2006: p. 568). In contrast, populist punitive policies “are political stances, normally adopted in the clear belief that they will be popular with the public….” (Bottoms, 1995: p. 40).
For an example of the brakes being applied by public opinion in an otherwise expert-led policy environment, see the report on “Sentences of Imprisonment: A Review of Maximum Penalties” issued by the Advisory Council on the Penal System in 1978. Because of press criticism and reports of public outrage, the Council’s recommendations for sentence length reductions were not taken up by the Labour government. The following year, the newly elected Conservative government effectively disbanded the Council.
Or perhaps one should say that the experts who count nowadays are experts in the politics of public opinion—i.e., political consultants and media advisers.
c/f Laclau (2007: xi) “populism has no referential unity because it is ascribed not to a delimitable phenomenon but to a social logic…Populism is quite simply, a way of constructing the political.”.
As David Brown (2012) puts it, the category of “the people” invoked by populist discourses is a “floating signifier,” an idealized, imaginary subject constructed in the process of representation. On the relation of political practices of representation to the thing represented, see Stedman Jones (1983) and Laclau (2007).
The victims’ movement might appear to be an exception, but it was initially a grass-roots movement that was subsequently co-opted by populist politicians rather than organized and mobilized by them—see Garland (2001).
See, for instance, Frost (2010); Roberts et al (2003); Applegate et al (1996); Cullen et al (1988). Hutton (2005: p. 246) summarizes this pattern of findings as follows: “Survey questions, issued in a structural way and the absence of information tend to generate more punitive responses, while methods which allow respondents to interact and engage in dialogue, issues framed in individual cases and the provision of more information, tend to generate more liberal attitudes.”
“[An] extensive body of evidence… has convincingly shown that people who seem to be punitive when asked for ‘top-of-the-head’ responses to simplistic, abstract questions, become far less punitive when allowed to provide a considered, thoughtful response to more detailed information about a specific case.” Frieberg and Gelb (2008:4). See also Green (2008) and Rowan (2012).
Of course, these artefacts may be more or less robust: some public attitudes can be altered by the provision of more information. Others—such as support for the death penalty—are more tenaciously held. For a nuanced, insightful discussion, see Hutton (2005) who stresses the difficulty of producing a clear account of what the public thinks about sentencing and punishment: “[The public’s] views appear to be complex and contradictory. They are dependent on the methods used to try to measure these views, on whether the accounts used in these methods are structural or individualized and on the nature of any additional information presented to respondents at the time of the data collection. Their views also reproduce more general social narratives about risk, insecurity and anxiety, which exist in a context wider than the personal experience or knowledge of the respondents.”
c/f Bourdieu (1993: pp. 149–50): “Every opinion survey assumes that everyone can have an opinion; in other words, that producing an opinion is something available to all. At the risk of offending a naively democratic sentiment, I would contest this first premise. [This political competence is not universally distributed. It varies, roughly speaking, with education.] Secondly: it is assumed that all opinions are of equal value. I think it can be shown that this is untrue and that the cumulation of opinions that do not all have the same strength leads to the production of meaningless artefacts. The third implicit premise is this: putting the same question to everyone assumes that there is a consensus on what the problems are, in other words, that there is agreement on the questions that are worth asking….The ‘public opinion’ that is manifested on the front page of newspapers (‘60% of French people are in favour of….’) is a pure and simple artefact whose function is to disguise the fact that the state of opinion at a given time is a system of forces, tensions and that nothing more inadequately expresses the state of opinion than a percentage.” Johnstone (2000: p. 163) says of opinion polls that “They fail to distinguish clearly between different aspects of ‘public opinion’ – such as knowledge, attitudes and sensibilities – and also fail to tell us much of value about why people adhere to specific attitudes or how strongly they adhere to them.”.
A century ago, Max Weber (1948a) was already lamenting the passing of an intellectually rational, fact-based politics and the increasing resort to emotional means of persuasion. Democracy was, for him, “a dictatorship resting on the exploitation of mass emotionality.”.
The populist insurgency (against the “liberal elite” and its progressive notions) has, in recent decades, installed itself as the new establishment. And who knows? Perhaps we will one day see a progressive reaction against the current “law and order” regime of punitive sentencing and mass imprisonment—a reaction that will embrace populist themes and representations: Michele Alexander’s best-selling book, The New Jim Crow (2010) proposed something of this sort, and a decade later, popular movements such as Black Lives Matter embody such sentiments.
For first-hand accounts of that earlier era in the UK, see Radzinowicz (1999), Blom-Cooper (1975), and Faulkner (2014). For histories of its emergence and decline, see Garland (1985) and (2001). For discussions of the changing role of criminological expertise, see Garland and Sparks (2000) and Loader and Sparks (2010)
See Cowperthwaite (1988) describing how Scottish Office officials sought to keep legislative proposals for a Children’s Hearing System away from the press and public consultation for fear of a negative reaction to what they regarded as radically progressive proposals.
In the USA, prosecutors are an important exception to this trend, their powers having been increased by the new sentencing structures. But of course, most district attorneys in the USA are elected, and their offices can usually be relied upon not to be “soft on offenders” and to use their discretion in the interests of public safety.
Zimring and Johnson (2006: pp. 276–277) note that “Much of the punishment hardware that facilitates leniency depends on trust in government’s expertise and benevolence. Citizens are restrained from acting on emotions and ‘throw away the key’ sentiments when they believe that there are principles of punishment – legal proportionality, predictions of dangerousness, responsiveness to treatment – that require government expertise. As soon as the claim of expertise is discredited, people on the street (or their state representatives) are every bit as expert as judges, parole boards, or correctional administrators.”.
c/f Zimring and Johnson (2006: p. 278): “What has always distinguished the governance of punishment in the United States from other advanced democracies is a structural vulnerability to democratic pressures that arise out of federalism, the election of prosecutors and judges, and high levels of life-threatening violence.” By contrast, many post-war European constitutions were drawn up, in the wake of fascism, in order to limit popular power and to multiply liberal safeguards (Muller, 2016).
Some writers, such as Stuntz (2011), embrace the popular control of punishment and insist that local members of the community are better able to impose justice and control crime than are criminological experts or detached professionals. But they don’t describe themselves as “penal populists”—preferring to talk of popular sovereignty, of democratic process, and of community control. For the most part, the phrase “penal populism” is deployed in a critical or derogatory sense.
I leave to one side the point that free, universal, public education is an enabling condition of this principle.
c/f Lappi-Seppala (2008: p. 116): “we should apply the normal rules of political accountability also in penal discourse. Nowhere else in political life plans and proposals can be presented without estimation of costs, benefits and alternatives.”.
Ryan (2005: pp. 147–148): “[D]espairing about ‘populism’ in learned academic journals…suggests, in the British case at least, an enduring social snobbery: a last-ditch defence mounted by an increasingly isolated academic and administrative élite against the idea that ordinary people are entitled to have their say.” For accounts of efforts to incorporate public opinion in sentencing, see Hutton (2008) and Indermauer (2008).
On the role of the criminologist as a public intellectual, see Loader and Sparks (2010).
c/f Max Weber’s admonition: “it is one thing to state facts, to determine mathematical or logical relations or the internal structure of cultural values….it is another thing to answer questions of the value of culture and… the question of how one should act. ….[T]he prophet and the demagogue do not belong on the academic platform.” (Weber, 1948b: p. 146) And recall James Q. Wilson’s provocative criticism of American criminologists who, when asked for advice by policy-making bodies, “could not respond with suggestions derived from and supported by their scholarly work” so instead offered advice that “tended to derive from their general political views” (Wilson, 1983: p. 42). That Wilson’s policy recommendations were no less politically tendentious does not detract from the force of his observation.
References
Alexander, M. (2010). The new Jim Crow: Mass incarceration in the age of colorblindness. The New Press.
Applegate, B. K., Cullen, F. T., Turner, M. G., & Sundt, J. L. (1996). Assessing public support for three-strikes-and-you’re-out laws: Global versus specific attitudes. Crime & Delinquency, 42(4), 517–534.
Barker, V. (2005). The politics of imprisonment. Oxford University Press.
Barker, V. (2009). The politics of punishment. Oxford University Press.
Blom-Cooper, L. (1975). Progress in penal reform. Oxford University Press.
Bottoms, A. (1995). The philosophy and politics of punishment and sentencing. In C. M. V. Clarkson & R. Morgan (Eds.), The politics of sentencing reform (pp. 17–49). Clarendon Press.
Bourdieu, P. (1993). “Public opinion does not exist” in Sociology in Question. SAGE.
Brown, D. (2005). Continuity, rupture, or just more of the ‘volatile and contradictory’?. In The new punitiveness: Trends, theories, perspective/s. Willan.
Brown, D. (2012). Imprisonment rates, social democracy, neo-liberalism and justice reinvestment” in K. Carrington et al. (Eds.), Crime, Justice and Social Democracy: International Perspectives (pp.102–129). Palgrave MacMillan.
Cavadino, M., & Dignan, J. (2005). Penal systems: A comparative approach. Sage.
Cowperthwaite, D. (1988). The emergence of the Scottish children’s hearing system. Institute of Criminal Justice, Southampton University.
Cullen, F. T., Cullen, J. B., & Wozniak, J. F. (1988). Is rehabilitation dead? The myth of the punitive public. Journal of Criminal Justice, 16(4), 303–317.
Downes, D. (1988). Contrasts in tolerance. Oxford University Press.
Faulkner, D. (2014). Servant of the crown: A civil servant’s story of criminal justice and public service reform. Waterside Press.
Foucault, M. (1977). Discipline and punish. Allen Lane.
Foucault, M. (1980). Prison talk. In C. Gordon (Ed.), Power/Knowledge. Vintage.
Frost, N. A. (2010). Beyond public opinion polls: Punitive public sentiment & criminal justice policy. Sociology Compass, 4(3), 156–168.
Garland, D. (1985/2018). Punishment and welfare: A history of penal strategies reprint edition. Quid Pro Books.
Garland, D. (2001). The culture of control: Crime and social order in contemporary society. Oxford University Press.
Garland, D. (2013). Penality and the penal state. Criminology, 51(3), 475–517.
Garland, D. (2010). Peculiar institution: America’s death penalty in an age of abolition. Harvard University Press.
Garland, D., & Sparks, R. (2000). Criminology, social theory and the challenge of our times. The British Journal of Criminology, 40(2), 189–204.
Gelb, K. (2008). Myths and misconceptions: Public opinion versus public judgement about sentencing. In A. Freiberg & K. Gelb (Eds.), Penal populism, sentencing councils and sentencing policy (pp. 68–82). Hawkins Press.
Green, D. (2008). When children kill children: Penal populism and political culture. Oxford University Press.
Hall, S. (1980). Drifting into a law and order society. Cobden Trust.
Hogg, R., et al. (2012). Punishment and ‘the people’: Rescuing populism from its critics. In K. Carrington (Ed.), Crime, Justice and Social Democracy: International Perspectives (pp. 105–119). Palgrave MacMillan.
Hutton, N. (2005). Beyond Populist Punitiveness. Punishment & Society, 7(3), 243–258.
Hutton, N. (2008). Institutional mechanisms for incorporating the public. In A. Freiberg & K. Gelb (Eds.), Penal populism, sentencing councils and sentencing policy (pp. 205–223). Hawkins Press.
Indermaur, D. (2008). Dealing the public in: Challenges for a transparent and accountable sentencing policy. In A. Freiberg and K. Gelb (Eds.), Penal populism, sentencing councils and sentencing policy (pp. 45–67). Hawkins Press.
Johnstone, G. (2000). Penal policy making: Elitist, populist or participatory? Punishment & Society, 2(2), 161–180.
Jones, G. S. (1983). Languages of class: Studies in English working class history 1832–1982. Cambridge University Press.
Jones, R. (2010). Populist leniency, crime control and due process. Theoretical Criminology, 14(3), 331–347.
Kazin, M. (1998). The populist persuasion: An American history. Cornell University Press.
Lacey, N. (2008). The prisoners’ dilemma: Political economy and punishment in contemporary democracies. Cambridge University Press.
Laclau, E. (2007). On populist reason. Verso.
Lappi-Seppala, T. (2008). Explaining national differences in the use of imprisonment. Japanese Journal of Sociological Criminology, 33, 93–120.
Loader, I. (2006). Fall of the platonic guardians: Liberalism, criminology and political responses to crime in England and Wales. British Journal of Criminology, 46(4), 561–586.
Loader, I., & Sparks, R. (2010). Public criminology. Routledge.
Matthews, R. (2005). The myth of punitiveness. Theoretical Criminology, 9(2), 175–201.
Miller, L. L. (2008). The perils of federalism: Race, poverty, and the politics of crime control. Oxford University Press.
Miller, L. L. (2013). Power to the people: Violent victimization, inequality and democratic politics. Theoretical Criminology, 17(3), 283–313.
Muller, J. W. (2016). What is populism? University of Pennsylvania Press.
Pratt, J. (2007). Penal Populism. Routledge.
Pratt, J. (2008). Penal scandal in New Zealand. In A. Freiberg & K. Gelb (Eds.), Penal populism, sentencing councils and sentencing policy (pp. 31–44). Hawkins Press.
Radzinowicz, L. (1999). Adventures in criminology. Routledge.
Roberts, J., Stalans, L., Indermaur, D., & Hough, M. (2003). Penal populism and public opinion. Oxford University Press.
Rowan, M. (2012). Democracy and punishment: A radical view. Theoretical Criminology, 16(1), 43–62.
Ryan, M. (2003). Penal policy and political culture in England and Wales. Waterside Press.
Ryan, M., et al. (2005). Engaging with punitive attitudes towards crime and punishment. In J. Pratt (Ed.), The new punitiveness (pp. 139–149). Willan Publishing.
Savelsberg, J. (1994). Knowledge, domination and criminal punishment. American Journal of Sociology, 99(4), 911–943.
Simon, J. (2009). Governing through crime. Oxford University Press.
Sparks, R. (2001). Bringin’ it all back home: Populism, media coverage, and the politics of crime control. In K. Stenson and R. Sullivan (Eds.). Crime, risk, and justice (pp. 194–213). Willan.
Stuntz, W. (2011). The collapse of American criminal justice. Harvard University Press.
Tomasky, M. (2014). A new populism. New York Review of Books, 61(4), 12–13.
Weber, M. (1948a). Politics as a vocation. In H. Gerth & C. Wright Mills (Eds.). From Max Weber: Essays in sociology. Routledge, Kegan and Paul.
Weber, M. (1948b). Science as a vocation. In H. Gerth & C. Wright Mills (Eds.). From Max Weber: Essays in sociology. Routledge, Kegan and Paul.
Wilson, J. Q. (1983). Thinking about crime. Basic Books.
Zimring, F., Hawkins, G., & Kamin, S. (2003). Democracy and punishment: Three strikes and you’re out in California. Oxford University Press.
Zimring, F. E., & Johnson, D. T. (2006). Public opinion and the governance of punishment in democratic political systems. The Annals of the American Academy of Political and Social Science, 605(1), 265–280.
Author information
Authors and Affiliations
Corresponding author
Ethics declarations
Ethics Approval
All procedures performed in studies involving human participants were in accordance with the ethical standards of the institutional and/or national research committee and with the 1964 Helsinki declaration and its later amendments or comparable ethical standards.
Informed Consent
All participants provided informed consent.
Conflict of Interest
The authors declare no competing interests.
Additional information
Publisher’s Note
Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.
A shortened version of this article was presented as a Keynote address at the Asian Society of Criminology conference on 18th June 2021. The present article is a slightly revised version of a chapter in Alison Liebling et al. (eds.) Crime, Justice and Social Order: Essays in Honour of A.E. Bottoms (OUP: Oxford 2021). It has its distant origins in a short preface commissioned for a special issue of The Japanese Journal of Sociological Criminology.
Rights and permissions
About this article
Cite this article
Garland, D. What’s Wrong with Penal Populism? Politics, the Public, and Criminological Expertise. Asian J Criminol 16, 257–277 (2021). https://doi.org/10.1007/s11417-021-09354-3
Received:
Accepted:
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11417-021-09354-3