Who’s afraid of penal populism? Technocracy and ‘the people’ in the sociology of punishment

Abstract

Contemporary sociologists of punishment have criticized the rising incidence of incarceration and punitiveness across the Western world in recent decades. The concepts of populist punitiveness and penal populism have played a central role in their critiques of the burgeoning penal state. These concepts are frequently sustained by a doctrine of penal elitism, which delegates a limited right to politicians and ‘the people’ to shape institutions of punishment, favoring in their place the dominance of bureaucratic and professional elites. I argue that the technocratic inclinations of penal elitism are misguided on empirical, theoretical, and normative grounds. A commitment to democratic politics should make us wary of sidelining the public and their elected representatives in the politics of punishment. A brief discussion of Norway’s legal proceedings against Nazi collaborators in the mid-1940s and the introduction sentencing guidelines commissions in Minnesota in the 1980s shows – pace penal elitism – that professional elites may variously raise the banner of rehabilitationism or retributivism. While penal elitism may yield a few victorious battles against punitiveness, it will not win the war.

Keywords:

• Penal populism
• punitiveness
• hyperincarceration
• democratic theory
• technocracy
• elitism

Acknowledgments

For their invaluable willingness to engage in discussions of the issues raised here, I am indebted to the following individuals: Johan Brox, Margareta Hedner, Magnus Hörnqvist, Anders Jupskås, Willy Pedersen, Sveinung Sandberg, Ian Shapiro, Henrik Tham, and Loïc Wacquant. All the usual caveats apply.

Notes

1. Briefly stated, penal elitism is the belief that the politics of punishment should be the preserve of enlightened elites, excluding allegedly emotive politicians and ignorant populations from decision-making processes and elevating a multitude of putative experts on law, crime, and punishment, including at different times members of professional categories such as judges, criminal justice bureaucrats, penologists, sociologists, and legal theorists. Unlike the concept of penal populism, which has generated a veritable cottage industry of penological reflection and analysis, its natural conceptual correlate, penal elitism, has rarely been deployed explicitly in the penological literature (but see e.g. Adorjan & Chui, 2013). However, it exists submerged beneath the surface of explicit discourse in most of the relevant works on penal populism. Despite the fact that scholars might not think of their work in such terms, it is possible to discern a series of positions in the literature that are characterized by penal elitism. The hallmark characteristics of penal elitism include a faith in the abilities of technocratic elites to proffer objective knowledge and develop policies of the state unimpeded by emotional attachments through the use of reason (see Table 1).

2. One of Beccaria’s contemporaries, Bentham (1776/1988, p. 100), on the other hand, was skeptical of judicial elites. Bentham was particularly scathing of the power of judges to impede or reject legislation: ‘Give to the judges a power of annulling its acts and you transfer a portion of the supreme power from an assembly which the people have had some share, at least, in choosing, to a set of men in the choice of whom they have not had the least imaginable share.’ Bentham viewed the judicial autonomy of a professional, legal elite as the obstruction of democratic politics by an excessively empowered minority. The fact that judges could indirectly temper elected assemblies was a ‘great power, too great indeed for judges’ (Bentham, 1776–1988, p. 101).

3. In the aftermath of the 2003 US invasion of Iraq, the Coalition Provisional Authority (CPA) hired college graduates in their early 20s to supervise the Iraqi national budget, despite these young graduates’ lack of professional experience with national-level economic policy-making. Symptomatic of the chaotic conditions of US colonial governance in Iraq, high-ranking CPA positions were handed out as a reward for their neoconservative inclinations following applications to entry-level jobs with the right-wing Heritage Foundation (Roberts, 2008, pp. 127–128). And yet they were for all practical purposes considered experts because they were treated as such, i.e. they were granted positions of real and significant authority. See Wacquant (2009a) for an elucidation of a particular brand of expertise that rose to prominence under the turn to ‘law and order’ politics in the 1990s.

4. To this one might respond that the Norwegian turn to harsh penality in the immediate years following World War II was itself a response to a remarkable situation: never before in its modern history had such a large contingent of the nation’s citizenry been seen to betray the furtherance of national goals and undermine the cause of liberal democracy. What is more, this exceptional scenario represented a brief interlude in an otherwise long century of relatively mild sentencing and punishment practices. What, then, can be learned from examining the limited turn to harsh postwar penality in Norway? First, it suggests that the perception of penal elites as necessarily bearing liberal values preferences toward punishment is false. Second, it undermines the idea that penal elites will necessarily act as a bulwark against the desires of the population to inflict harsh punishment; on the contrary, penal elites can manufacture retributive penal policies and do so by mobilizing a particular representation of the public’s preferences.

5. One wonders where penal elitists would draw the line: would their preference for expert authority over democratic influence remain the same if the topic of debate were not the police, courts, and prisons, but rather tax levels, foreign military interventions, or spending on public education? One suspects they would balk at the ‘insulation’ of democratic influence from questions readily recognized as falling within the horizon of democratic politics. If this is so (and it remains a point of speculation), it may be because of a brute logical inconsistency within a broader domain of political preferences or because punishment policies are considered a special case deserving of their own institutional arrangements and norms of democratic accountability. However, good reasons are seldom provided for why crime and punishment should constitute a special case.

6. For an erudite account of the ‘indictment of politicization’ in the history of political thought, from Plato through Edmund Burke, Max Weber, and Jürgen Habermas to Philip Pettit’s neo-republicanism, see Urbinati (2014, pp. 81–127).