On Matters Criminological: How did the rise of the Right influence the growth of incarceration?

“The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country”
(Sir Winston Churchill)

The Demise of the Welfare State and the New Penology

“Justice is incidental to law and order”
Director J. Edgar Hoover (F.B.I)

According to Matthews (2009) the C20^th’s philosophical persuasion in regards to crime control was that of bifurcation, balancing ‘exclusionary strategies’ (e.g. incarceration) and the community-based welfare motivated ‘inclusive strategies’ (Matthews, 2009). Since the post-war period, however, Keynes’s state project has come under increasing attack for the generation of a culture of pathological dependency, being too heavy a burden on the public purse (especially relevant today), for being far too pervasive and intrusive: taking far more liberties with the operational objective of ‘cradle to grave’ then perhaps Keynes himself would have been comfortable: the resulting consequences? Reorganisation, review and the inevitable retrenchment of the welfare state into a rapidly ever more overt ‘penal state’ and the prevalence of one side of Beckett and Western’s (2001) two-sided ‘policy régime’ (Wacquant, 2001a; Cavadino and Dignan, 2007; Matthews, 2009).

It is with this in mind that we turn now to the dawn of the ‘New Penology’: managerial and designed not to reform or treat the offender, but to identify, classify and control groups based on their level of dangerousness – unlike the ‘New Punitivenes’ which had as its crux the placing of moral blame on the criminal, and was by its very nature transformative (Feeley and Simon, 1992; Matthews, 2009).

Nonetheless we must always err on the side of caution when tempted to pontificate on the ‘causal mechanisms’ of the changing incidences and nature of welfare provision and incarceration rates. Whether one finds oneself in the ‘cum hoc’ or ‘post hoc’ school, it is wise to remember, all things being equal, that these are both examples of logical fallacy.

The rise of the Neo-Conservatism
The wind blowing through the corridors of power both in Whitehall and on Capitol Hill in the mid-late 1970s was of recrudescence in populist authoritarian ‘law and order politics’ that sought to restore the Neo-Classicist vision of a ‘voluntaristic criminality’, with its key concern of developing efficient crime control means, rather than questioning causality through the implementation of what has been labelled as ‘Strategy A’ policies in its approach to the penal system (McLaughlin, Muncie and Hughes, 2006).

The British political establishment had remained conservative for the better part of 30years, but the election of Margaret Thatcher as Prime Minister in 1979 saw the Neo-Conservative preoccupation with posited traditional morality and enforced social harmony take centre stage as she recited the prayer of St. Francis on her arrival at Downing Street.

Neo-Conservatism, defined by its inherent fear of social fragmentation, deviance and delinquency invokes an Aristotelian spirit in its assertion that good law and good order are the adhesives that keep society together (Aristotle). At its very heart are three principal concerns of law and order, public morality and national identity. Neo-Conservatism elevated the moral culture of society to the status of ‘explanatory variable’ of long-term changes in the levels of criminality and disorder (McLaughlin and Muncie, 2008). The American political scientist and éminence grise James Q Wilson – who later became an advisor to the Republican administration - was one of the main exponents of Neo-Conservatism, and with George Kelling co-authored the ‘Broken Windows’ Thesis (Wilson and Kelling, 1982) which has become the sine qua non contribution to the debate on social disorganisation, informal social control and crime prevention (Crawford, 1998).  Mrs Thatcher (1979-1991) and President Reagan (1980-1984) have come to personify this particular –ism.

As ‘social authoritarians’ (Heywood, 2003 p98) Neo-Conservatives take a very Hobbesian perspective on the root causes of disorder, propter hoc crime and delinquency can only be countered by a real fear of sure and severe punishment (Hobbes, 1651; McManus, 2010). Hall and Jacques (1983) interpreted the ‘law and order’ ideology as ‘authoritarian populism’, acting as both mirror and response to widespread popular anxiety towards the decline of order and morality in society (Heywood, 2003).

Central to this ideology is the assertion that more visible or aggressive policing and tougher sentencing will make society safer: the core function of punishment, according to this approach, - and interestingly also Durkheim (1960) - was primarily not to deter or rehabilitate offenders, but to re-affirm and strengthen the social bonds that hold society together, but seen in regards of its impact on the establishment of moral harmony through treating ‘undesirables’ as pariahs. Punishment was synonymous with retribution and, through implication, disproportionate to the offence due to its vital, symbolic role in community cohesion (Durkheim, 1960; Kennedy, 2000 p831; Comfort, 2005; Newburn and Jones, 2005; McManus, 2010).

Whilst criminality was intrinsic, it had to be dealt with within the wider context of multiple prevalent social pathological phenomena, attributable to the ‘corrosive influence’ of the liberalist modern culture. These were causally linked to the weakening strength of the sources of social authority (family, school, Church etc) and to the ‘corrosive influence’ of the surrounding culture that emphasised rights rather than rightness of behaviour (contrary to the Neo-Conservative maxim “it’s not about being right, but doing right”) and which celebrated self-expression to the point of self-indulgence (a sardonic analogy to much Left-wing criticism of life under Thatcher being a ‘conspicuous celebration of self’) instead of promoting self-discipline and moderation (McLaughlin and Muncie, 2008; White and Haines, 2008).

“The most disturbing threat to freedom and security is the growing disrespect for the rule of law”.
(Conservative Party 1979 Election Manifesto)

Mrs Thatcher’s government injected a heavy dose of “Strategy A” into penal policy – this meant, whilst no means across the board, being deliberately harsher in punishing offenders at every stage and in every respect. Mrs Thatcher undertook the largest prison building programme for decades, involving the start of two new prisons in each year from 1981-1985, together with further modernisation of the Neo-Gothic edifices of the ‘architecture of segregation’ (Cavadino and Dignan, 2007).

Under Home Secretary Douglas Hurd (1985-1989) the government’s policy became less dogmatic and more pragmatic, although still flavoured with punitive ‘law and order’ rhetoric. Epitomising the ‘Hurd era’ was the Criminal Justice Act (1991), which has been identified as the most radical legislative reform to the penal system since the Second World War, bringing the notions of bifurcation and transcarceration to the dispatch box (Cavadino and Dignan, 2007).  Hurd demonstrated that Neo-Conservatism is not ignorant to the universal truth that the world changes, so they must also change: conserve not all the past, just what is believed to be the best of it (Lyman, 2009).

No one was surprised however when, within months of the Act’s implementation, John Major’s government pursued even harsher Strategy A policies, articulated by Lord Howard, then Home Secretary, in his infamous remarks that “prison works” that took us into the phase of the ‘new punitiveness’ with its minimum sentences, the 27 point plan to crack down on crime’, through the punitive trespass and public order provisions of the 1994 Criminal Justice and Public Order Act, mandatory minimum sentences in his Crime (Sentences) Bill and US-style boot camps for juvenile delinquents (Green, 1987; Heywood, 2003; Newburn and Jones, 2005; Cavadino and Dignan, 2007; Podmore, 2012).

Neo-Conservatives do not oppose change for the sake of opposition; they stand firm and question it out of an almost intrinsic scepticism of social experimentation, along the lines of “if it isn’t broken, don’t fix it – whether or not it works very well is not the issue, but that it is better than something untried and unknown is (Lyman, 2009 p138)

How did the rise of the Neo-Conservatives facilitate the shift towards penal populism and the growth of imprisonment?

 By playing upon the public’s notions and perceptions of crime, fear and risk (as well as the actual levels), by launching a moral crusade committed to a set of ‘vigorous virtues’, by bemoaning, rejecting  and repudiating ad absurdum the liberal democratic formulations that had theretofore permeated social scientific thought (such as moral relativism) and through the unflinching resistance to the liberals’ claim that welfare-oriented social reforms would ‘significantly decrease’ the national crime rate: which, its advocates suggested, was a result not of social inequality, but the growth of permissiveness and a dependency culture amongst those in reception of welfare benefits as well as an apathetic political class, the failed philosophy of rehabilitation as the sole point of incarceration and an increasingly feral and hostile generation of young people (Behrens, 1980; Hall and Jacques, 1983; Riddell, 1985; Letwin, 1992; Adonis and Hames, 1994; Heywood, 2003; McManus, 2010; Tierney, 2010).

Blair’s New Labour

The lengthy political dominance of Republicanism in the US and Conservatism in the UK led to vociferous debates within both the Democratic and Labour parties over the possible sources of electoral success in what was clearly a different time. The process by which the Democrats and Labour became ‘New Democrats’ and ‘New Labour’ has been broadly characterized as one of ‘modernization’ (Newman, 2001) and, centrally, involved a gamut of policy reformulation and image redesign. Cue the ‘third way’ – the transcendence of clichés and the balancing of old school social democracy on one side and neo-liberalism on the other (Le Grand, 1998; Newburn and Jones, 2005; Wilson, 2006; Downes and Morgan, 2007). It also involved giving considerable thought to the public image of the two parties and in due course, in the eyes of some at least, a process of ‘rebranding’ or image overhaul. It also meant paying particularly close attention to the importance of symbolic politics, not least within its criminological context (Newburn and Jones, 2005; Wilson, 2006; Downes and Morgan, 2007).

 Anderson and Mann (1997) suggested that ‘Blair was particularly impressed by the way Clinton had managed to overcome the Democrats’ vulnerability to attack from the Republicans – for their “soft” approach on crime, welfare dependency and family values – by taking aggressively populist anti-liberal stances’ (p. 22). Biographer Jon Sopel (1995) argues that Blair and Brown were certain that there were important lessons to be learned from recent experience in the United States: ‘not only in how to win, but what to do once you have won’ (p. 146). Rentoul (1995) understood the visit to have given Blair a sense of perspective. He seemed not only to have had an ideological epiphany, but also found the words to express and communicate his message of radical, populist, anti-élite, anti-establishment social moralism (p278).

New Labour's 3,023 new offences demonstrate just to what extent they had been seduced by the politics of penal populism. This surprising number of new crimes reveals the ease by which a government  can be tempted to legislate not based on empirical evidence or informed counsel but through knee-jerk reactions - to be seen to be "doing something" in the face of each new moral panic that the tabloids blew out of proportion (Wilson, 2006; Downes and Morgan, 2007).

As night follows day, so with the creation of all these new criminal offences goes the need to police these new offences, and then punish the perpetrators. Under New Labour prison become the place to disappear that troublesome population which had remained fiercely defiant of ASBOs, community curfews, on-the-spot fines, or the new variations on a police theme: Police Community Support Officers, Community Wardens or the private security guards who are now increasingly policing public space (Wilson, 2006; Downes and Morgan, 2007; Hitchens, 2012; Podmore, 2012).

With little community infrastructure to support people with mental health problems, or addictions - often the reason why "crime" is committed in the first place – the scope of prison was re-invented and became re-legitimised as the functioning alternative to the welfare state of Old Labour (Wilson, 2006; Downes and Morgan, 2007).

It is important to remember that while the second part of New Labour’s campaign promise to be "tough on the causes of crime" may well be as much a positivist inspired approach as it is a comfortable compromise between the factions within his party and the British public’s tendency towards cyclical penal populism, after thirteen years of a Labour Government criminological realists all recognise that this was both a sound bite and something upon which they knew they would not be able to easily deliver, not that it mattered - Blair had learnt from the Clinton experience that the only way for left-of-centre parties to claw back power was to ensure that they were seen to be "tough on crime" (Wilson, 2006; Downes and Morgan, 2007; McManus, 2010).

“Punish the feral rioters, but address our social deficit too”
Hon. Kenneth Clarke QC MP
Secretary of State for Justice (2010 – 2012)

If the winds of change were blowing in the late 1970s then an equally potent sea change, be it of waters clear and blue or clear and red, occurred in British penal politics in the early 1990s. Though it would be easy and convenient to reduce this to the impact of Michael Howard’s appointment as Conservative Home Secretary in May 1993, it would be deceptive. Howard’s ‘prison works’ speech at the Conservative Party conference 1993 however, did indicate something of a different approach in style and substance from his predecessors in the Home Office.

In Howard’s defence, it ought to be mentioned, that upon assuming office he was faced with a challenge that no Conservative Home Secretary had previously faced – a Labour counterpart that sought to usurp the very law and order territory that the Conservative Party had monopolized for almost two decades. ‘Tough on crime, tough on the causes of crime’ had first been aired four months before Howard became Secretary of State for the Home Department (Newburn and Jones, 2005; Downes and Morgan, 2007).

Crime on the up, popularity waning in the polls and the prospect of being outflanked by New Labour on crime forced Howard’s hand to react quickly and consistently. Taking back wherever possible the newspaper headlines and television screens from New Labour, Howard descended into near hyperactivity. However, there was little Howard could do to shake off Labour’s newfound assignations with punitive penology (Downes and Morgan, 2002: 296).

Considering the apparent consensus that existed between New Labour and the Conservatives on law and order there seems little to be gained in pondering how things might have been different if Major had defeated Blair in 1997. It is this conjoining of the parties in a new unspoken (or even desired) bipartisan consensus that is one of the major distinguishing features of the period we find ourselves in now (Newburn and Jones, 2005; Wilson, 2006; Downes and Morgan, 2007).

Both major political parties here and across the Atlantic have largely followed the same penological journey. In the UK, whilst the transition from old Labour ‘penal welfarism’ to New Labour ‘penal populism’ had many complex roots, lessons drawn from the American New Democrats and increasingly punitive Neo-Conservatism have been central (Newburn and Jones, 2005; Wilson, 2006; Downes and Morgan, 2007; Matthews, 2009).

Media influences on penal populism

Law and Order (inc. Law and Order: CI/SVU/UK), CSI (Miami/NYC/Vegas), Criminal Minds, NCIS, LA Law, Forensic Files, Cops (on  Camera/Uncut), Judge Judy, Hill Street Blues, Dirty Harry, Crime Watch UK, the Bill, True Justice, Patrol, a Touch of Frost, the Met, DCI Banks, Morse, Scott & Bailey. These are but a fraction of the variety of crime-related media that is so readily and popularly consumed by both American and British audiences: from ‘continuing dramas’ to live action recorded ‘real cases delivering real rulings’. The past two decades have seen more and more of this crime-related media than any other period since televisions became a commodity and its popularity on the increase, with the Law and Order franchise being the longest continuously running example. But what impact could all these have had? Is there a ‘Law and Order effect’?

Rosenberger and Callanan (2011) examined how perceptions of the four universally accepted justifications for punishment (punishment, incapacitation, deterrence, and rehabilitation) were influenced by consumption of crime-related media, using a survey of Californian residents. Their results indicated higher incidences of television news and crime-based reality consumption correlated with increased incidences of selecting punishment as the primary operational objective of custodial incarceration as opposed to rehabilitation. The more television watched, the greater the likelihood respondents would support the punitive justifications rather than rehabilitation. These results stood in spite of the various socio-economic and -demographic characteristics and experiences of crime such as fear, victimization, and prior contact with law enforcement (Rosenberger and Callanan, 2011).

Incarceration rates have significantly risen over the last thirty years in many countries, but most dramatically in the United States, which has the highest incarceration rate among developed nations. From 1980 to 2006, the incarceration rate in the United States increased by more than 300%, but despite a popular fallacy, this striking increase did not correspond with a corresponding dramatic rise in crime. In fact, crime has been steadily dropping in the United States longer than in the United Kingdom- since 1991 and 1997 respectively (Maguire & Pastore, 2007; Federal Bureau of Investigation, 2008; Walmsley, 2009 Rosenberger and Callanan, 2011).

Demker, Towns, Duus-Otterstrom, & Sebring (2008) have suggested that increases in incarceration rates are driven by increasingly punitive publics, but others suggest the role of public opinion is more heterogeneous (Rosenberger and Callanan, 2011). Nonetheless, all perspectives allude to the weight of public opinion on crime-related policy; studies therefore have endeavoured to understand the source of public opinion about crime (Rosenberger and Callanan, 2011).

Conclusions?

It is a common presumption that punitive public attitudes are derived from the direct experience of crime and victimization. People become ‘fed up’ with criminality and seek to strike back at lawbreakers. Social theories of punitiveness, on the other hand, typically portray punitiveness as a form of scape-goating in which offenders are just a stand-in population, masking more abstract anxieties parading as the ‘dark figure of crime’ (King and Maruna, 2009).

King and Maruna (2009) conducted a survey designed to explore both of these hypotheses with a British sample public. A multivariate analysis of responses found that factors such as economic concerns and the nostrum folk devil “the state of the youth today” accounted for a substantial proportion of the effect of actual crime concerns on punitiveness. Crime-related factors, such as experiences of victimization or the fear of crime, on the other hand, did not appear to be especially significant predictors of punitiveness.

Since the ‘law and order’ principles upon which the Conservative party based their electoral campaign in 1979, every major party has included in their manifesto a particular approach to crime control, law and order. The British penal system has been politicised and rebranded. No political leader wishes to be seen as soft on crime, and even if they may not believe in prison as the be all and end all democracy, being the voice of the people, would imply that with an increasingly punitive electorate the party that wins, is the party prepared to take the ‘war on crime’ most seriously (and perhaps severely) – consider how things might stand if we still had the death penalty.