Academic journal article Australian and New Zealand Journal of Criminology

When Penal Populism Stops: Legitimacy, Scandal and the Power to Punish in New Zealand

Academic journal article Australian and New Zealand Journal of Criminology

When Penal Populism Stops: Legitimacy, Scandal and the Power to Punish in New Zealand

Article excerpt

This article examines the relationship between the concept of legitimacy and the power to punish in modern society. It argues that the rise of penal populism is related to the way in which criminal justice elites steadily lost legitimacy in the post-1970s period. However, it goes on to argue, using New Zealand as an illustration, that there are limits to the power of penal populism. It too can lose its legitimacy when it breaches the boundaries of morally justifiable punishment levels or when it loses consent for what it promises to do.

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We have become very familiar with what is known as 'penal populism'--the way in which an array of law and order lobby groups, the tabloid press, talkback radio hosts and callers, right-wing thinktanks, a few academics such as James Q. Wilson and some evangelising police chiefs spreading the message of 'zero tolerance' have become influential on government policy (see, e.g., Ryan, 2003; Pratt, 2007). (1) As this has happened, so the influence of liberal elites--senior civil servants, academics, penal reform groups and judges who collectively make up the 'criminal justice establishment'--has declined (Loader, 2006). We have also become familiar with its effects--substantial rises in imprisonment and deteriorating prison conditions.

However, very little consideration has been given to what might be the limits of this new form of penal power. Current developments in New Zealand, a country that has been particularly vulnerable to penal populism (see Pratt & Clark, 2005), illustrate that there clearly are limits to it. In August 2006 its Prime Minister, flanked by senior ministers and the President of the New Zealand Law Commission, launched the government's 'Effective Interventions Strategy'. She explained that in a period when recorded crime in New Zealand had dropped by some 25% between 1994 and 2006, (2) the level of imprisonment in this country had become

   too high ... our goal must be to get the imprisonment rate back to
   something more consistent with that of those countries we consider
   our peers ... the criminal justice system cannot go on as it is
   [with] an unacceptably high rate of imprisonment. (Clark, 2006, p.
   1)

She went on to state that prison levels had become 'economically and socially unsustainable' and the new strategy, which included more emphasis on the reintegration of prisoners, community sentences and the establishment of a Sentencing Council, aimed to reduce the prison population. To put her speech in context, in 1996 there were 4,736 prisoners in New Zealand. In 2006, there were 8,000 and the rate of imprisonment had increased from 130 per 100,000 of population to 188. Her own governments since Labour's election victory in 1999 had overseen the bulk of this increase.

The article argues that the limits to penal populism relate to the level of legitimacy that this new expression of penal power enjoys. That is, the way in which a system of power is understood to be morally justifiable and for which there is significant evidence of consent (Beetham, 1991). As Sparks (1994, p. 15) argues, 'to speak of power is almost in the same breath to raise the question of its need for legitimation, and the presence or absence of legitimacy carries large consequences for all parties in a system of power relations'. The first part of this article thus examines the relationship between legitimacy and the power to punish in modern society, h argues that the rise of penal populism is related to the way in which criminal justice elites steadily lost legitimacy in the post-1970s period: in the subsequent realignment of power relations that ensued, penal populism was able to become influential. However, the new structure of penal power that it became part of can also lose its legitimacy when it breaches the boundaries of what is morally justifiable or when it loses consent for what it promises to do. Under these circumstances, we are likely to find a further realignment of penal power taking place, with populist influences reduced. …

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