Criminal Justice and Neoliberalism

264 Pages·2011·5.892 MB·English

by  Emma Bell (auth.)

Criminal Justice and Neoliberalism
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Criminal Justice and
Neoliberalism
Emma Bell
University of Savoie, France
© Emma Bell 2011
Foreword © Robert Reiner 2011
Softcover reprint of the hardcover 1st edition 2011 978-0-230-25197-7
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First published 2011 by
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Contents
Foreword vi
Acknowledgements xii
List of Relevant UK Legislation xiii
Introduction 1
Part I The Intensification of Punishment 13
1 Lock ’em Up! 15
2 Trojan Horses: The Rise of Out-of-Court Justice 44
3 The New Welfare Sanction 62
4 Erecting the Boundaries of Exclusion 93
5 Whither the Punitive Turn? 114
Part II Explaining Punitiveness 133
6 Defining Neoliberalism 139
7 Neoliberal Punishment 162
8 Constructing the Authoritarian Consensus 191
Conclusion: Towards Penal Dystopia? 204
Bibliography 213
Index 243
v
Foreword
During the last four decades profound social and cultural changes have
set into reverse key features of a trajectory of emancipation that can
be traced back over the five centuries since the Renaissance. I have
in mind here what David Garland has referred to as the ‘solidarity
project’, the long march of increasing social inclusiveness and equal
citizenship (Garland, 2001, p. 199). This is not to postulate a Whig
grand narrative of inevitable or unbroken progress. The project faced
constant opposition across a broad front of interests and ideologies.
And throughout there were massive setbacks, not least the industrial-
ised mass slaughter and destruction of the twentieth century’s world
wars.
Nonetheless, after each bloodbath, and despite continuing critique,
the ideals and social imaginary encapsulated in the French Revolutionary
slogan – liberty, equality, fraternity – seemed to become more deeply
and widely realised and embedded, most evidently in the post-World
War II decades of social democratic predominance. This process was
celebrated in democratic socialist and liberal histories, quintessentially
T. H. Marshall’s classic lectures on citizenship (Marshall, 1950). But its
seeming irreversibility was also perceived by those who railed against it,
as indicated by Evelyn Waugh’s famous lament that ‘the trouble with the
Conservative Party is it has not turned back the clock one second’.
In the more specific spheres of crime and criminal justice the project
was associated with a civilising process à laNorbert Elias, whereby viol-
ence by citizens unevenly but steadily declined (Eisner, 2001; Spieren-
berg, 2008). The use of force by criminal justice agencies also became less
prominent, signified by the rise of penal welfarism and policing by con-
sent (Garland, 1985; Reiner, 2010a, pp. 250–2, 2010b: Chap. 3). The high-
point of the march towards greater social incorporation, and more
welfarist approaches to criminal justice, was the post-World War II dom-
inance of Keynesian and social democratic economic management and
social policy (including its US version, the New Deal). The rapid rupturing
of these political-economic and penal strategies since the 1970s by the
rise of their nemesis, what has come to be called ‘neoliberalism’, is the
focus of the complex, sophisticated and scholarly analysis in this book.
Speaking for myself, I feel there has been something of a trahison
de clercs (although in the reverse political direction from Benda’s ori-
vi
Foreword vii
ginal formulation accusing intellectuals of surrendering to socialism) in
the relative absence of critical attention given to this monumental
development, at any rate until relatively recently. In the early stages of
neoliberalism’s rise, during the later 1970s and 80s, conservative crim-
inologists cheered the neoliberal turn (heralded by Wilson, 1975). But
soi-disant radical criminology also attenuated its critique of criminal
justice in a variety of ways, ranging from the espousal of left realism
and a proliferation of administrative, policy-oriented research. I have
always been persuaded of the validity of left realism’s central claim
that criminal victimisation (and not just the injustices of criminal
justice) must be taken seriously as a left issue. And much of what the
left realists somewhat caustically dubbed administrative criminology
provides invaluable material for the understanding and analysis of crime
and justice, and is often very critical of official policies in its implica-
tions. Nonetheless the various strands of the realist turn after the 1970s
did until recently imply a change in the subject, diverting attention
from the large-scale social and cultural forces that were restructuring
crime and criminal justice (Chap. 7 of this book discusses how changes
in funding and career opportunities for academic criminologists
encouraged this). Altogether there was a temporary bracketing-out of
the significance of political economy (Reiner, 2007a).
One aspect of the increasing hegemony of neoliberalism was a revival
of interest in the economicsof crime and criminal justice on the part of
some criminologists and neo-classical economists. This was paralleled by
administrative criminologists’ rediscovery of classical conceptions of
crime as a rational choice and a focus on crime control through mani-
pulation of the immediate situations and contexts of offending (explored
in Chap. 7 of this book).
It has only been since the late 1990s that some criminologists have
begun to probe the broad spectrum of changes in crime and criminal
justice, and their deeper socio-cultural sources. The widest-ranging
and most influential interpretation is without doubt David Garland’s
seminal The Culture of Control(Garland, 2001), which attributes the trans-
formation to a multi-stranded conception of late modernity. Other
analyses of the overall trends in crime and control include Currie,
1998; Taylor, 1999, Young, 1999, 2007; Tonry, 2004; Pratt et al., 2005;
Cavadino and Dignan, 2006; Reiner, 2007b; Simon, 2007; Hall et al.,
2008; Lacey, 2008; Wacquant, 2009 (as well as a growing body of papers
including many by these same authors).
These earlier interpretations are influential in this book, but also subject
to shrewd critical assessment. Emma Bell’s analysis offers the most
viii Foreword
rigorous and complete account to-date of neoliberalism and the British
criminal justice experience (including useful comparisons throughout
of the variations between England and Wales, and Scotland and
Northern Ireland). She documents convincingly that there has indeed
been a ‘punitive turn’, whilst also paying due attention to the continu-
ities and indeed reversals in penal policy. She traces in detail the polit-
icisation in law and order since the 1970s, in particular following the
electoral exploitation of the issue by the Conservatives under Margaret
Thatcher (as indicated by the study of election manifestos in Downes
and Morgan, 2007).
The intensification of penality has not, however, been a continuous
development, as the present book shows. For all Margaret Thatcher’s
tough rhetoric her governments largely mounted what I have called a
‘phoney war’ against crime (Reiner, 2007b, p. 129), and indeed they
presided over an unprecedented crime explosion. This is not to say that
all the Iron Lady’s fiery speeches were mere sound and fury signifying
nothing. In some ways, notably the militarisation of public order pol-
icing, they were every bit as hard as promised. But in criminal justice
policy more broadly the real shift to toughness came in the early 1990s
when Michael Howard as Home Secretary and Tony Blair as his Shadow
began a bidding-war on boosting penal severity and police powers (whilst
watering down the countervailing due process safeguards in the 1984
Police and Criminal Evidence Act which in its time had attracted oppro-
brium as heralding an Orwellian expansion of police power).
The causes and consequences of the embedding of tough law and
order policies are analysed insightfully and comprehensively in the
chapters below. There is particular attention given to the growth of ‘out-
of-court justice’ (ASBOS, Penalty Notices for Disorder, cautioning), and
New Labour’s proclivity to expand what Garland called the ‘welfare sanc-
tion’, the combination of welfare measures backed by potential criminal
sanctioning, as its way of delivering on its pledge to be tough on the
causes of crime. The increasing commercialisation of punishment and
security, through privatisation and the importation of New Public Man-
agement models to state agencies, is assessed critically. These criminal
justice trends are dialectically related to growing social inequality and
exclusion. They are responses to the crime and disorder generated by the
inequality, long-term unemployment and social dislocation produced by
neoliberalism. But in turn they exacerbate crime through segregation and
labeling. As Polanyi, Gamble and others have shown, the ‘free economy’
requires a ‘strong state’ to handle the tensions and conflicts it spawns
(Polanyi, 1944; Gamble, 1994).
Foreword ix
The book is not only a comprehensive account of penal trans-
formation but a rigorous analysis of its roots in the political economy
of neoliberalism. This is no straightforward economic determinism.
Neoliberalism is not a one-dimensional economic category. It refers to
a political economy in which a particular form of economic theory
holds sway, which can be referred to as market fundamentalism: the
view that unfettered markets promote maximal efficiency and pros-
perity. But this has complex cultural, social and political conditions of
existence and consequences.
The links between neoliberalism as contrasted with other forms of
political economy and patterns of crime and control is complex, dia-
lectical and multi-dimensional. The relationship is mediated by particular
processes and institutions, for example the affinity between unregulated,
risky and highly competitive markets, a moral culture of egoistic indi-
vidualism and utilitarian, risk-based managerial and governmental men-
talities. But whilst laissez-faireeconomics may be conducive to laissez-faire
ethics, as noted earlier the fallout of this mix in terms of crime and dis-
order encourages strong state security strategies. Moreover, Emma Bell
adopts the useful notion of ‘actually existing neoliberalism’ to analyse
the incomplete and varying realisation of neoliberal economic theory
in specific social and political formations, introducing a further degree of
complexity.
Altogether this book offers the most comprehensive and rigorous
account to-date of the complex inter-relations of neoliberalism, crime
and criminal justice. But there is of course much work still to be done.
Despite the burgeoning literature on the subject indicated above, there
are still mysteries in explaining the sudden rise of neoliberalism to
dominance in the 1970s, sweeping away so rapidly the post-World War
II social democratic consensus that had delivered so much in terms of
widely shared growth in material prosperity and security, as well as rel-
atively low crime and benign control strategies by historical standards.
Even more important practically, and at least as mysterious: where are
we going now? It is remarkable that so soon after the economic and
financial crunch in late 2007 seemed to discredit the neoliberal model,
its savagely deflationary prescriptions for dealing with the sovereign
debt crisis (resulting from governmental support for banking) are the
new orthodoxy. How can this zombie neoliberalism be accounted for?
And what will it mean for criminal justice in Britain, in the hands of
the new Conservative-Liberal Democrat coalition?
Many liberals have been impressed and surprised by early signs of
willingness to reverse some of the trends to harsher punitiveness and