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This chapter presents a brief characterization of penal republicanism in general and explores the concrete implications of one of the main principles supported by that theory: the principle of democratization of criminal law and the criminal justice system. The adoption of that principle is a consequence of the general, republican ideal of self-government and deliberative democracy. In supporting the principle, penal republicanism opposes both penal elitism and penal populism. Two versions of the republican theory of criminal law can be identified — one more strongly democratic than the other — depending on whether they emphasize the opposition to one doctrine or the other. The strongly democratic version of penal republicanism is defended.

Criminal justice scholars such as Bottoms and Pratt argue that citizen participation has played a decisive role in the expansionary penal state. Their “penal populism” thesis is exemplified by the classic case of three-strikes legislation in California, which was propelled forward by distrust of officials, erosion of barriers between electoral politics and criminal justice policy, equation of effective punishment with severity, and emotive political rhetoric. As a remedy, Lacey, Pettit, Zimring, and others recommend greater professionalization and more insulation between criminal justice policymaking and the public. This chapter challenges this approach on practical and normative grounds, arguing that sealing off the criminal justice process from the public blocks education, assumption of responsibility, and trust-building experiences. Penal populism, it argues, is not a matter of too much citizen participation, but of a mass mobilization lacking constructive elements of other citizen movements. The restorative justice movement is instructive, as advocates reject the idea of the public as naturally punitive. Programs involve citizens as needed resources for humanizing mainstream criminal justice procedures, as, for example, lay volunteers in circle sentencing and family group conferencing dialogues.

This chapter examines the relationship between media, public opinion and death penalty judicial decisions in China. As argued, unlike the experiences of Western democracies, China’s penal populism as exhibited in death penalty cases often targets judicial decision-making in individual cases rather than legislative changes.

This chapter starts with an exploration of John Pratt's intellectual life-course, starting in the early 1980s with his writings on controlling youth delinquency and finishing with his research on the history of the modern prison. Then, it explores his work on recent penal change, that is, the place of punishment in a culture of intolerance captured in his phrases ‘the decivilization of punishment’ and the ‘new punitiveness’. It also provides a critical discussion of Pratt's way of making sense of penal change. Next, it describes Pratt's evolution as a public intellectual. The majority of this chapter talks about Pratt's later work, in particular his books, Punishment and Civilization and Penal Populism. The chapter includes a discussion that shows the merits of the methodological choice for coming to terms with the intellectual life-course of an author and its wider implications for scholarship in the field of the sociology of punishment.

This chapter first describes and explains a set of political conditions and incentives in advanced democracies that have made the strategy of cynical penal populism attractive to elected officials. The first of these is the degree to which policymaking discourse and activity reflect transparent or covert processes in response to public opinion. The second is the extent to which favored policies represent officials’ rather than those cynically chosen for their expected resonance among the electorate, regardless of principles or effectiveness. The chapter considers as well the costs and benefits of “doing good by stealth” and explains why it is misguided. It then draws on the political philosophy of liberalism and models of deliberative democracy to sketch the outlines of an alternative strategy—one that could neutralize penal-populist incentives and, more importantly, to enhance legitimacy by enabling all citizens to participate more meaningfully in debates about how and why they are policed, prosecuted, sentenced, and punished.

This final chapter first makes the case against re-insulating penal policymaking processes from public influence, favouring instead an embrace of more participatory arrangements. It then briefly outlines several ‘root and branch’ anti-populism reform proposals for effecting penal climate change. The root-based reform efforts centre on embracing aspects of more deliberative consensus democracies in order to bring about changes in the English penal climate to help de-politicize penal policymaking and make it a variable-sum game. Since features of consensus political culture have prophylactic effects on penal populism, all opportunities to effect this kind of cultural change by structural reform should be embraced. This includes reforming journalistic norms and practices to be more facilitative of public deliberation.

Prisons across the globe are manifestations of inequality. In any society, its most marginalised groups are overrepresented in prisons and all institutions of criminal justice. Notwithstanding this universal condition of contemporary criminal justice, the link between social inequality and inequality of punishment has been found to be tenuous and elusive. This contribution addresses the question how socio-economic inequality shapes the manifestations of punishment for a global sample of countries. As socio-economic inequality and criminal punishment are both multi-faceted concepts, several indicators are used for each. The findings confirm the highly contextual nature of the link between inequality and criminal punishment; they suggest a variegated impact of political economies, and a multiplicity of mechanisms that link inequality and criminal punishment across the globe.

This book adopts a comparative case study approach to examine the relationship between crime, politics, public opinion, and the news media in both Norway and England. By examining the responses to the James Bulger and Silje Redergård homicides, this book describes a set of interlinked problems facing professional experts and penal policymakers, most of which are more acutely experienced in England than in Norway. Culture-specific variations within a constellation of factors help to explain the variable susceptibility to penal populism in these two countries.

This chapter highlights two opposing strategies for seeking to protect criminal justice policymaking from the excesses of penal populism: insulationism and reinvigorationism. Particular concerns about the relationship of criminal justice policymaking to public opinion reflect a broader climate of knowledge production, such that the contemporary production of criminological knowledge itself forms part of the apparent problem of penal populism. This chapter suggests that the most effective response to the apparent problem of penal populism lies in a reconsideration and democratization of the relationship between expert knowledge and public policy in contemporary society. Drawing on the example of the 2014 Scottish Independence Referendum, it advocates the need for new forms of producing and utilizing expert knowledge as a means of creating “spaces of hope” through which more meaningful policy alternatives and engaged publics can be imagined and developed, proposing Ruth Levitas’s “method of utopia” as one possible means of doing so.

Using deliberative practices to produce and capture a seemingly more refined form of public opinion on matters of penal policy and practice has been proposed as an antidote to penal populism. However, critics argue that while deliberation might provide useful insights into the way in which opinion is formed, it cannot replace conventional survey-based approaches as these capture opinion as it “really” is, whereas deliberation creates a hypothetical public. This chapter argues that this criticism misrepresents both the research methods examined and the realities they purport to represent. Drawing on ideas emanating from the field of science and technology studies, the chapter demonstrates that different methods for gauging public opinion enact different kinds of democratic realities. It concludes that to nurture a more deliberative and less punitive future for penal politics it is necessary to make space for what can be called a “politics of the real.”

This chapter, which has both descriptive and normative aims, explores possible connections between a particular theory of democracy, namely deliberative democracy, and the criminal law. The descriptive part consists of the study of three examples showing existing and fruitful interactions between deliberative theory and criminal law: the first is related to criminal trials, the second to the sentencing process, and the third to penal decision-making. The main interest of this chapter, however, is normative: the goal of this work is to help strengthen the links between deliberative theories and criminal law. The chapter should be understood as a contribution to the gradual democratization of the criminal law. The implications of the normative view are illustrated through two examples related to contemporary social protests presented at the beginning of the chapter.

This chapter introduces the central theme that animates the chapters in this volume: that one underexploited resource for a better penal politics lies in investigating the ideals and institutions of democracy, and thinking about how these ideals can be theorized and given practical effect in reshaping the criminal justice and penal arrangements of advanced capitalist democracies today. Penal scholarship has seen the emergence of a defensive, nostalgic orthodoxy, one that sees technocratic governance as the most plausible route out of penal excess. In contrast, this chapter makes the case for enriching the exchange between punishment and democratic theory. By paying closer attention to the unrealized promise of democratic values and commitments, we can sharpen the critique of mass incarceration, restrain the power and reach of the penal state, and focus greater attention on the question of how to reconstruct criminal justice institutions to make them agents of a deeper democracy.

This chapter reviews the key thrust of criminal justice policy over the last 30 years and then turns to ‘read the runes’ to see what sorts of continuity or discontinuity can be expected. In criminal justice policy, one can differentiate clearly between the period from 1979 to 1992, when the Conservatives pursued a surprisingly liberal set of policies, and the period from 1993 to 2010, when the main parties seemed consistently locked in a competition to ‘out-tough’ each other on law and order. Moreover, the questions on penal populism and the ‘war on crime’, centralisation and responsiveness to local preferences, and rehabilitation revolution are addressed. This discussion of the Coalition's policies on criminal justice is inevitably tentative. It is too early to speak with any certainty, but it seems just possible that the fortuitous collision of a Coalition government and a fiscal crisis may benefit justice politics.

This chapter addresses the debate over public participation in criminal justice. On one side of this debate are those who argue that criminal justice policy should be removed from direct political—and hence public—control, and delegated to an insulated panel of experts. On the other are those who argue that the public has to have a decisive role in criminal justice policy, even if we should agree that electoral politics is not a meaningful or constructive form of public participation. One important point at issue between the two sides is whether insulating key policy decisions in criminal justice would be undemocratic, and whether it matters if it is. This chapter provides a number of reasons for approving of public participation; once articulated, we can use them to inform the question of how we might reform and rebuild criminal justice institutions to give the public a more productive role.

The aim of this chapter is to demonstrate that the principle of fair play provides a helpful way of addressing the problem of mass incarceration and of dampening the tendency to penal populism. In particular, the principle provides guidance with regard to the four analytical considerations in determining whether the rates of imprisonment are excessive: (1) are too many people committing crimes? (2) are too many activities counted as criminal? (3) are too many criminals imprisoned? and (4) are too many prisoners imprisoned for too long? The claim is that democracy leads to mass imprisonment only when an otherwise democratic polity fails to meet the standards of equal treatment and fair play on which it is supposed to rest. In this respect, demonstrating the relevance of the principle of fair play to the problem of mass incarceration should contribute to the practice as well as the theory of democracy.

‘Wicked policy problems’ are defined as complex, not fully understood by policy makers, highly resistant to change and seemingly immune to any evidence likely to bring about change for the better. Policy, in the case of prison education, is not necessarily driven by what works and is often not evidenced-based. It is increasingly positioned by political expediency and the signalling of politicians’ ‘toughness on crime’. In this chapter I look at three distinctly different prison education systems in Northern Europe; in England, Germany and Norway. I examine the extent to which discourses associated with both the marketisation of education and penal populism have influenced the construction and facilitation of prison education in all three countries. Finally, I argue that, to varying degrees, the reconstruction of prison ‘education’ into low-cost job skills training contributes to the domination of policies that speak more to public moral panic and the need to cut the economic costs of welfare than to the rehabilitation of prisoners.

Philosophers tend to think of the problem of punishment as being the problem of demonstrating that it is or can be justified. Settling the question of whether punishment is justified as a practice, however, does not answer the practical questions of when and how punishment is justified in particular cases, nor does it tell us whether some other response to lawbreaking is preferable or complementary to punishment. There are, in fact, a variety of problems associated with punishment, and I attend to four of them in this chapter in order to demonstrate the reach and power of fair-play theory. Two of them—the problems of excessive incarceration and of voting rights for felons—are much-discussed matters in recent years. The other two—the problems of assessing punishment for recidivists and of what role restitution should play in the sentencing of offenders—are also matters of both practical and philosophical interest.

Increasingly, courts around the world are being required to sentence offenders for crimes committed years or even decades earlier. Prevailing conceptions of harm and culpability change over time. Policymakers concerned with punishment and sentencing should be sensitive to changes in the absolute and relative seriousness of crimes as well as the absolute and relative severity of punishments. Ordinal rankings of offenses have evolved over the past 50 years, as has our understanding of the impact of various sanctions. Issues raised by sentencing for crimes committed much earlier illustrate the need for a time-sensitive approach. Should defendants be sentenced according to standards prevailing at the time of the offense or according to current standards? In a just system, offenders would be judged by the standards prevailing when they took the decision to offend. A time-sensitive approach would apply the sentencing standards of the earlier time yet also consider time-relevant mitigation and aggravation in the subsequent period. The offender’s conduct and the victim’s suffering during the period are both relevant factors. Passage of time often changes our evaluation of the offense and the offender. When this occurs, the nature of the sentence should change. Likewise for long-serving prisoners, whose sentences should be reviewed after years have passed, in case they are no longer deemed proportionate.