Academic journal article New Zealand Sociology

Neoliberal States and 'Flexible Penality': Punitive Practices in District Courts

Academic journal article New Zealand Sociology

Neoliberal States and 'Flexible Penality': Punitive Practices in District Courts

Article excerpt


Based on qualitative fieldwork conducted in the Auckland District Court, this article argues that contemporary modes of punishment under neoliberal governance are characterised by three inter-related trends: A tendency to expand the frontiers of criminality; the development of multiple juridical spaces, each accompanied by distinct forms of legal consciousness amongst professionals; and institutional practices informed by numerous logics of power. I use the term 'flexible penality' to summarise these worrying trends and close by considering alternatives to our growing dependence on criminal justice systems to manage the problems that accompany neoliberal regimes.


The rise of neoliberalism has led to renewed interest in how broader social forces shape the nature of penal regimes (O'Malley, 1999a; Wacquant, 2010; Pratt & Eriksson, 2013). For some scholars, imprisonment rates constitute the most obvious manifestation of shifts in punishment and it is therefore not surprising that much recent scholarship has focused on the use of prison. However, prison is only one of the punitive sanctions utilised by criminal justice systems and constitutes an 'end point' for only a portion of those who are pushed through the institutions of criminal justice.

This article explores the relationship between neoliberalism and punishment through an empirical focus on district courts in New Zealand. Although the empirical study is to be extended by analysing other district courts and conducting further interviews with legal professionals, initial data has been gathered by unobtrusive observations conducted in the Auckland District Court, several interviews with lawyers, and document analysis. Low-level courts are an important site to study because they process most of the people charged with a criminal offence and rely on a wide variety of strategies to regulate and control those found guilty of offending. In fact, New Zealand's district courts oversee 80% of jury trials and pass 99% of the sentences ordered by the country's courts (Ministry of Justice, 2010).

Although tentative, observations suggest that punishment in neoliberal states is increasingly driven by what I refer to as 'flexible penality'. The key features of this logic include a tendency to increasingly task the criminal justice system with managing social problems. The intensified demands placed upon the court engender multiple juridical spaces, each undergirded by an idiosyncratic form of 'legal consciousness' that is shared amongst the professionals who dominate courtroom proceedings (that is, prosecutors, judges, lawyers, and probations). The third aspect of flexible penality, which is to some extent implied by its other features, is its irreducibility to a single penal logic that informs courtroom practices. That is to say, flexible penality is marked by multiple modes of domination and power that, although likely to overlap in many important respects, are analytically distinguishable.

Some contemporary approaches to the problem of social structure and punishment

The idea of flexible penality can be highlighted by juxtaposing it with three theoretical frameworks that have gained considerable traction amongst scholars interested in the problem of punishment: Marxist accounts; risk-needs or 'actuarial justice'; and neoliberal state-crafting. Amongst Marxists, punishment patterns are dictated by economic structures, and this has numerous implications. The criminal justice system will concentrate on controlling the poorest social classes, a group that will consist largely of 'racialised others' due to the discriminatory nature of labour markets (Melossi & Pavarini, 1981; Wilson, 1987, 1996; Wacquant & Wilson, 1989; Shelden, 2001; Davis, 2003; Western, 2006). Specific types of punishment will vary according to shifts in economic relations. Nevertheless, to deter people from 'dropping out' of the legitimate economy, punitive sanctions will always be worse than the worst working conditions in the labour market (Rusche & Kirchheimer, 1939). …

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