Exceptionalism for most, excess for others: The legal foundation of a bifurcated criminal justice system in Denmark

Published date01 May 2024
DOIhttp://doi.org/10.1177/14773708231208333
AuthorMads Madsen
Date01 May 2024
Subject MatterArticles
Exceptionalism for most,
excess for others: The legal
foundation of a bifurcated
criminal justice system in
Denmark
Mads Madsen
VIA University College, Denmark
Abstract
Following a change in the Danish gang milieu in 2008, where ethnic minority street gangs chal-
lenged the established outlaw motorcycle gangs, the Danish government has formulated three
anti-gang policy packages. To unfold the development they represent to Nordic penology, this art-
icle analyses elements of both penal exceptionalism and excess. In this article, it is shown how the
packages are based on the notion of gang membership as a choice, which legitimated the develop-
ment of a parallel justice system for gang members. This foundationis built upon a gang-specif‌icsub-
section that allows for the doubling of gang-related sentences and for restricting prisoner rights and
traditional rehabilitative treatment for gang-related convicts. The packages, however, maintained a
way outfor gang members who voluntarily entered a formalEXIT program, and thus gained access
to traditional penal treatment and also support for leaving the gang milieu. It is argued that the
packages represent a development of intended bifurcation based on status differentiation between
citizen groups, a process also observed in regard to Danish anti-ghetto policies. Thus, rather than
resembling a general turn to punitiveness, the packages indicate a penological development based
on penal differentiation, which raises questions about access to justice for those found wanting.
Keywords
Anglophone excess, bifurcation, Denmark, gang policy, Nordic exceptionalism
Introduction
In their latest anatomy of penal systems across Europe, Ruggiero and Ryan noted a
widespread bifurcation (differentiated treatment) across European penal systems
Corresponding author:
Mads Madsen, VIA University College, Hedeager 2, 8200 Aarhus N, Denmark.
Email: mmma@via.dk
Article
European Journal of Criminology
2024, Vol. 21(3) 392410
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/14773708231208333
journals.sagepub.com/home/euc
(Ruggiero, 2013: 288290). This development showed itself through harsher penal treat-
ment of select population groups, mainly those in marginalized and less powerful posi-
tions, and of separate treatment for distinct categories of offences. It was argued that
these differentiated practices were reactions to nation-specif‌icmajor threats to social
order and the reproduction of the status quo(Ruggiero, 2013: 288). Though such
threats are severe, differentiated treatment in penal systems raises concerns over basic
democratic values like equality under the law and citizenship status (Hudson, 1993).
Recent research has demonstrated that though traditionally described as a cluster of
egalitarian societies with lenient penal climates (Pratt and Eriksson, 2013),
Scandinavian countries also have developed bifurcated penal practices. This has
mainly been described as a differentiation between citizens and immigrants through
merging immigration policies and penal logic in bordered penalities(Aas, 2014; Aas
and Bosworth, 2013). These bordered and bifurcated practices have been argued to be
embedded in welfare nationalistic rationales of protecting the welfare services for the
worthy population groups by excluding groups of Others discursively characterized by
unworthiness (Barker, 2018). In most studies, unworthiness has been found to mean
undocumented immigrants and other groups of non-citizens, while only a few empirical
examples have been put forth that show how other population groups with full citizen
status have faced bifurcated practices. This articles main purpose is to present such a
case. Through a detailed policy analysis of both law texts and the political speeches
given when presenting the laws, the article will show how three law packagesaddres-
sing gang crime in Denmark laid the foundation for a bifurcated criminal justice system. It
has been noted that recent penological developments have been understudied in Denmark
compared to both other Scandinavian countries and Europe in general (Barker and Smith,
2021), which is why a Danish empirical example is even more called for. Only a few
studies have previously taken steps to analyse Danish gang policies coherently. One
example is Nilsson and Delica (2015), who have studied the f‌irst gang package from
2009 in light of a Wacquanian discussion of a societal transition from welfare to prison-
fare in Denmark, documenting a development where prison sentences increasingly take
centre stage as a way to address social issues in Denmark, which stands in contrast to the
notion of Nordic exceptionalism (where imprisonment is found to be used in exceptional
cases, see Pratt, 2008a, 2008b). This tendency has, however, been enhanced through the
subsequent gang packages, where especially the bifurcated element has been central in
the development of what appears to be a parallel justice system, which is why a study
of all three packages with focused attention on the bifurcation aspect is called for.
Developments in Nordic penology
In 2008, John Pratt investigated what he saw as a lenient penal tradition in Scandinavia,
which he termed Nordic Penal Exceptionalism, in opposition to an Anglophone Penal
Excess (Pratt, 2008a, 2008b). Ever since its formulation, the theory of Nordic exception-
alism has been debated vigorously, in some cases to discuss whether it ever was a sound
theory, in other cases to discuss whether it remains relevant today. This article is con-
cerned with this second line of research in that it utilizes Pratts distinction between
exceptionalism and excess as analytical concepts to unfold how the gang packages
Madsen 393

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