Extending public involvement in decision-making and responding to public opinion in criminal justice policy-making is an inherently complex task riddled with controversies. Critics of extending public involvement and responding to public opinion in policymaking tend to highlight how the public are regularly misinformed and prone to misperception; this in turn can lead to the exploitation of a misinformed public through the mechanism of penal populism (Bennett, 2014). Penal populism is a controversial political phenomenon as in this environment politicians tend to pursue populist punitive policies which devalues research-based evidence, raising questions for justice (Matthews, 2005). Whilst these complexities suggest that public involvement in policymaking should be limited, responding to public opinion and public involvement in policymaking is a core democratic principle which guarantees the underlying theory of “rule by the people” and consequently should not be abandoned (Clawson and Oxley, 2017). This essay will define penal populism and will expose some of the contemporary debates around why extending public involvement in decision-making and responding to public opinion is so controversial.
Penal populism is a commonly invoked term in the lexicon of criminology although very little consideration is given to its definition (Pratt, 2007). The notion of “penal populism” originated in Anthony Bottom’s literature as “populist punitiveness”; whilst these terms are often used interchangeably there are distinct differences (Dzur, Loader and Sparks, 2016). Populist punitiveness was initially introduced as a term to describe the behaviour of politicians “tapping into and using for their own purposes, what they believe to be the public’s generally punitive stance” (Bottoms, 1995: 40 in Pratt, 2007: 2). This gave way to the term “penal populism” which has been utilised to identify politician’s tendencies to pursue penal policies which are electorally attractive as opposed to those policies which attempt to reduce crime or promote justice (Pratt, 2007). The populist aspect of this process involves the injection of the will of the public into the decision-making process (Pratt. 2007). However, penal populism should not be merely understood as incidents of political opportunism which favours punitiveness, but it should be identified as part of a profound cultural and social shift in the axis of contemporary penal power (Pratt, 2007). This shift began in the 1970s and became a disernible force within the 1990s (Pratt, 2007). By this era, public involvement in decision- and policy-making had been given increasing consideration because of the politicisation of crime control issues; policy measures have increasingly been constructed in consideration of gaining political advantage at the expense of the views of experts and research evidence (Garland, 2001). The policies encapsulated within penal populism include harsher sentencing, the increased usage of imprisonment and more punitive crime control policies as a means to control crime (Matthews, 2005). Such policies are not developed for the promotion of justice, reducing crime or in line with criminal statistics, but are constructed for short-term political gain, normally to garner the electorate’s favour during the lead up to a political election (Roberts et al., 2003). This manipulative shift which has seen politicians exploit the public’s fear of crime to address political and economic crises and for political advantage (Hancock, 2004). Responding to public opinion during a time of “penal populism” can thus be highly problematic.
Controversy arises when responding to public opinion as it can leave political parties open to making short-term political calculations. A renowned example of this is seen in the build up to the 1997 election where both parties were seen to engage in acts of penal populism. In 1993, 2-year-old James Bulger was murdered by two 10-year-old boys which triggered a moral panic around youth crime as debates about a depraved “underclass” and youth culture were brought into parliament and the media (McFarquhar, 2011). The media attention this incident received aided in creating misperception among the public that levels of youth crime were rising whilst they were actually decreasing (Brownlee, 1998). In line with this misperception and the public’s perceived fear of youth crime, Tony Blair repositioned Labour’s stance on youth crime to be in line with the perceived public’s opinion and encapsulated their new retributive position in the slogan: “tough on crime, tough on the causes of crime” (Loader, 2016: 6). This approach contained a disproportionate reaction to a perceived threat to society (youth crime) where highly punitive policies were pursued in order to curry favour with the public to secure electoral success (Loader, 2016). More punitive policies such as harsher sentencing, zero tolerance policies and anti-social behaviour orders were pursued despite a continual fall in recorded crime from the early 1990s (Matthews, 2005). The policies constructed were created with short term political success in mind as opposed to considering crime statistics and consulting expert’s research (Pratt, 2007). As a result of these short term political calculations, a series of policies were adopted which, whilst popular within the public’s opinion, were academically controversial and based on contradictions (Brownlee, 1998). This incident of penal populism occurred through the exploitation of a misinformed public which created harsher sentences and harsher punishments than could be justified; this raises serious questions for notions of justice as more punitive measures have been introduced, not as a reflection of criminal justice statistics but as a result of the manipulation of a misinformed public (Bennett, 2014). Consequently, responding to criminal justice policy making can often have the unfortunate result of the exploitation of the public and their misperceptions as short-term political decision are made.
An issue brought about through responding to public opinion is the devaluation of research-based knowledge and the consequent paradox of democracy which it creates. Garland’s (2001) concept of “new populism” highlights the development of a political era which began developing in the 1970s and is characterised by a distinct “populist” policymaking climate. Crime control policies in this age have become highly politicised and populist as criminal justice policymaking is increasingly brought into the public domain where policies are voted on according to popular appeal, as seen in the build-up to the 1997 election (Garland, 2001). The dominant voice in criminal justice policy in this era ceases to be the academic researcher, professional elites or experts who are highly informed about criminal justice matters; alternatively, in this populist environment power is transferred to a fearful and anxious public (Garland, 2001). The importance of research is downgraded and replaced by the voices of “common sense” and “what everyone knows” (Garland, 2001: 13). This observation of a populist environment developing is not unique to Garlands (2001) literature, but has been observed by a range of academics (Beckett, 2001). The degradation of the criminal justice expert in this era and the consequent pursuit of populist policies creates a shadow, cast by democracy itself (Matthews, 2005). This shadow takes the form of a paradox in democracy (Bennett, 2014). When one is committed to democratic principles, there can frequently be a contrasting view of which policy should be pursued and the underlying principles of said policy (Bennett, 2014). On one end of the spectrum is the course of action to be decided by the public vote; on the other hand, there is the view of “what ought to be done”, an often-contrasting view informed by academic researchers and those most informed on the matters in question (Bennett, 2014: 148). If committed to “democracy” and its associated principles, then the democratic decision to adopt a populist criminal justice policy may be pursued, even though it may mean that offenders suffer more injustice because of it (Bennett, 2014). As such, responding to public opinion and the “democratic decision” attracts controversy as it leads to a host of issues regarding social justice.
Responding to the public’s opinion is controversial as it is often not based on a proper understanding of policy and practice (Allen, 2003). Public misinformation can take various forms; for instance, the public may have limited knowledge about the nature of the crime problem which criminal justice policies attempt to address (Roberts et al, 2003). This has been particularly noted with regards to the aforementioned example of New Labour’s tough on crime, tough on the causes of crime campaign. Throughout the mid-1990s, whilst crime rates decreased year on year, approximately 80% of the public consistently believed that crime trends were rising nationally (Feilzer, 2015: 61). The mass media’s distorted coverage of crime and the criminal justice system plays an important role in creating this misperception around criminality and the criminal justice process as the media often act as the main influencer of public perceptions (Dowler, 2003; Turner, 2014). This distorted coverage has been argued to create a fear of crime due to the social misunderstandings about the reality of crime (Wood and Viki, 2004). This misperception and fear of crime is argued to have generated an increase in punitive public attitudes and a disapproval of liberal criminal justice policies (Wood and Viki, 2004). The shift to populist and punitive criminal justice policies in the UK, as identified in the 1997 election, has been identified as part of the government’s attempts to manipulate this fear of crime to manage short-term political success (Hancock, 2004). Responding to a misinformed public opinion in this way raises several matters relating to justice, including the risk of producing more “illiberal, counter-productive and socially divisive” criminal justice policies (Hancock, 2004: 54). This raises implications for justice for the offenders of crime and creates issues for the justifications of harsher punishments, not to mention issues over the political exploitation of a misinformed public (Bennett, 2014). As a result, it is controversial to respond to public opinion in policymaking due to the production of policies which are based on public misunderstandings of crime and criminal justice policies (Turner, 2014).
Within these insurmountable controversies remains the inherent problem of understanding what the public’s opinion is, as if it cannot be understood it cannot be responded to. Traditional opinion survey methods, such as the annual British Social Attitudes survey, constitute the dominant approach to understanding public opinion and have done so since the 20th century (Defty, 2016; Turner, 2014); however, such approaches are argued to provide a limited understanding of public opinion (Turner, 2014). Whilst the research into understanding public opinion through surveys is developing and becoming more complex, it often remains more invoked than understood and tends to view public opinion in an undifferentiated fashion, not doing justice to individual’s distinct views (Hancock, 2004; Turner, 2014). These approaches constitute an Aggregative General Individual Passive (henceforth AGIP) approach and are characterised by their: (1) quantitative nature, aggregating individual views; (2) focusing on general public conceptions as opposed to any specific criminal justice sectors; (3) understanding of an individual “public opinion” in a fashion which detracts from personal opinions and attitudes and (4) understanding of opinions in a passive, non-interactive style which does not engage with individual attitudes (Turner, 2014). Whilst a particular amount of power has been attached to this research method; it is argued to construct a public opinion as much as it attempts to unveil one (Turner, 2014). The AGIP approach to research methods tends to produce “reality effects”, where the opinion the survey constructs is not “real” in the sense that it existed before the survey brought this “reality effect” into its being (Turner, 2014). This raises a variety of implications for responding to public opinion if what we are responding to is not in fact a real measure of the public’s opinion (Turner, 2014). As a result, there is a discrepancy between public attitudes and politicians understanding of these attitudes (Wood and Viki, 2004). Consequently, criminal justice policies are not based on an accurate understanding of public opinion (Allen, 2003). Thus, extending the influence of public opinion in policy-making becomes highly controversial if what is being responded to is not an accurate reading of the public’s opinion of criminal justice matters and crime.
Despite the aforementioned controversies brought about by involving the public in decision-making, there are calls to increase their involvement. “New variant populism” represents a perspective which advocates such a movement; underpinning this notion is the call to “break down the institutional barriers between the criminal justice system and the community” which involves a shift to a more participatory and communitarian model of justice (Roberts and Keijser, 2014: 476). Increasing public involvement in criminal justice procedures includes processes such as granting the jury power during the sentencing process. This involves educating juries on crime trends which will enable a democratic decision to be made which is more attuned to the individuality of the case and is argued to be more likely to reflect the public’s consensus than with a judge’s sentence (Roberts and Keijser, 2014). This is argued to aid in the democratisation of punishment and will help secure public consent for the legitimacy of criminal justice procedures; in turn, this is argued to create a more just and humane criminal justice system (Bennett, 2014). This is argued to tackle many of the issues surrounding public misperceptions of the criminal justice system as it involves bridging the gap between the criminal justice system and the public (Roberts and Keijser, 2014). In doing so, this process would purportedly extract some of the poisons of penal populism as the sentencing process will become more responsive to members of the public as politicians will not be the ones deciding on sentencing policy (Roberts and Keijser, 2014). This will insulate the criminal justice system from populist policies and political influence and thus penal populism (Roberts and Keijser, 2014). Despite such claims, these conclusions have been criticised as being overly fallacious and idealistic and consequently new variant populism remains highly controversial (Bennett, 2014; Roberts and Keijser, 2014). Such a transition to “new form populism” brings in a host of new issues and does not necessarily tackle issues of involving the public in the decision-making process (Bennett, 2014). Critics argue that involving the public more is likely to undermine the core sentencing principle of consistency as punishments are subject to inconsistent jurors; in addition, small, unrepresentative sentencing jurors whose opinion does not reflect that of the general public compromises notions of democratic justice and as such are a threat to principled sentencing (Roberts and Keijser, 2014). As such, “new variant populism” brings in a host of new controversies for public involvement in decision-making and does little to solve existing issues (Roberts and Keisjer, 2014).
This essay has brought to light some of the contemporary controversies regarding the extension of public involvement in decision-making and the issues of responding to public opinion. Such controversies highlight some of the major contentions in the unresolved debate over the public’s role in criminal justice policies and evidences the problematic nature of embedding democratic principles into our political system. Many of these controversies relates to the poisons secreted through penal populism; the manipulation of a misinformed public; the insufficient methods to understand public opinion; and the issues raised with calls to extend public involvement under new variant populism. Despite the difficulties of responding to public opinion and increasing public involvement, democratic principles should not be abandoned. However, ongoing debates around democratic theory continually take place to decipher what role the public should have with regards to decision-making and criminal justice policymaking. This essay has offered a glimpse into these debates and the controversies which surround public involvement and public opinion.
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