Criminal justice and democratic systems: inclusionary and exclusionary dynamics in the institutional structure of late modern societies

It is generally agreed that the humanity, fairness and effectiveness with which a governments manages its criminal justice system is a key index of the state of a democracy. But the constraints on realization of democratic values and aspirations in criminal justice are markedly variable. In the last two decades, in the wake of both increases in recorded crime and a cluster of cultural and economic changes, criminal justice policy in both Britain and the U.S. has become increasingly politicized: both the scale and intensity of criminalization, and the salience of criminal justice policy as an index of governments' competence, have developed in new and, to many commentators, worrying ways. These developments have been variously characterized as the birth of a "culture of control" and a tendency to "govern through crime"; as a turn towards the "exclusive society"; and in terms of the emergence of a managerial model which focuses on the risks to security presented by particular groups. In the U.S., we witness in particular the inexorable, and strikingly racially patterned, rise of the prison population, amid a ratcheting up of penal severity which seems unstoppable in the face of popular anxiety about crime. In the context of globalization, the general, and depressing, conclusion seems to be that, notwithstanding significant national differences, contemporary democracies are constrained to tread the same path of penal populism, albeit that their progress along it is variously advanced. A significant scaling down of levels of punishment and criminalization is regarded as politically impossible, the optimism of penal welfarism a thing, decisively, of the past. This paper sets the nature and genesis of criminal justice policy in Britain and America within a comparative perspective, in order to make the case for thinking that, far from being invariable or inevitable, the rise of penal populism does not characterize all "late modern" democracies. Rather, certain features of social, political and economic organization favor or inhibit the maintenance of penal tolerance and humanity in punishment. I argue that, just as it is wrong to suppose that crime can be tackled in terms of criminal justice policy alone, it is equally erroneous to think that criminal justice policy is an autonomous area of governance. Rather, the possibilities and constraints under which governments develop and implement criminal justice policies are a function of not only perceived crime problems but also a cluster of institutional factors relating to political and economic systems. Notwithstanding a degree of convergence, so-called "globalization" has left many of the key differences among advanced democracies intact, and these may help to explain the striking differences in crime levels, penal severity and the capacity for penal tolerance in otherwise relatively similar societies. Only by understanding the institutional preconditions for a tolerant criminal justice system, I argue, can we think clearly about the possible options for reform within any one system