Moving beyond punitivism: Punishment, state failure and democracy at the margins
| Author | Insa Koch |
| Published date | 01 April 2017 |
| Date | 01 April 2017 |
| DOI | http://doi.org/10.1177/1462474516664506 |
| Subject Matter | Articles |
Article
Punishment & Society
2017, Vol. 19(2) 203–220
! The Author(s) 2016
Moving beyond
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punitivism: Punishment,
DOI: 10.1177/1462474516664506
journals.sagepub.com/home/pun
state failure and
democracy at
the margins
Insa Koch
London School of Economics, UK
Abstract
Recent commentary on the punitive turn has focused on the repressive nature of crim-
inal justice policy. Yet, on a marginalised council estate (social housing project) in England,
residents appropriate the state in ways that do not always align with the law. What is
more, where the state fails to provide residents with the protection they need, residents
mobilise informal violence that is condemned by the state. An ethnographic analysis of
personalised uses of criminal justice questions the state-centric assumptions of order
that have informed recent narratives of the punitive turn. It also calls for a reassessment
of the relationship between democratic politics and criminal justice by drawing attention
to popular demands that are not captured by a focus on punishment alone.
Keywords
democracy, ethnography, inequality, popular punitivism, punishment, the state,
United Kingdom, violence
The idea of a punitive public looms large in contemporary criminal justice.
Politicians regularly appeal to the public’s popular demands for harsher punish-
ment when promising to crack down on law and order. From the UK’s anti-social
behaviour policies to the three-strikes and you’re out laws in the US, elected
representatives have referenced the suffering of ordinary citizens to justify the
endorsement of ever more draconian policies. The politicisation of crime
Corresponding author:
Insa Koch, Law Department, London School of Economics, Houghton Street, London WC2A 2AE , UK.
Email: i.l.koch@lse.ac.uk
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Punishment & Society 19(2)
control – variously labelled the ‘politics of penal populism’ (Pratt, 2007: 21), the
‘politics of law and order’ (Downes and Morgan, 2007: 201) and the ‘politics of
punishment’ (Bottoms, 1995: 47) – has been subject to a great deal of commentary
in academic scholarship (for an overview see Campbell, 2015). While the debate is
far from settled, dominant narratives have tended to link punitive shifts in policy
and law-making to broader crisis of legitimacy across Western democracies, includ-
ing the UK and the US (Garland, 2001; Gottschalk, 2010; Simon, 2007; Wacquant,
2009, 2010, 2013). According to these views, at the turn of the 20th century, pol-
iticians are responding to widespread social insecurities among the population by
amplifying their authority in the area of crime and punishment.
A central assumption underlying much of the discourse in both policy and
scholarship is the claim that broader social insecurities generate popular demands
for a stronger state. It comes perhaps as no surprise then that the figure of the
Leviathan looms large. As Ramsay has pointed out, punitive shifts in criminal
justice seem ‘to raise the themes of Thomas Hobbes’ (1986) account of an absolutist
sovereignty inaugurated by an insecure population’ (2012a: 131). Hobbes’ account
of the Leviathan is, of course, well known: people agree to leave the original state
of nature – governed by insecurity and fear – to subject themselves to a centralised
authority. This requires them to give up their freedom in return for which the state
offers them protection of their person and property. Hobbes’ view of state law is
based on an assumption that societies only function in the presence of a centralised
authority that maintains and enforces order. This is an assumption that has
informed ways of thinking about the state in the West (Comaroff and Roberts,
1981). Applied to the contemporary context of criminal justice, the argument is
that widespread feelings of insecurity at the turn of the 21st century have produced
something akin to the state of nature, against which the state emerges, once more,
as an authoritative source of order.
In this article, I analyse how the narrative of the return of a contemporary
Leviathan can be challenged if the perspective of the margins is taken into account.
To this end, I ask, how does an ethnographic assessment of everyday uses of ‘law
and order’ amongst marginalised groups complicate the standard narrative of a
punitive public? What happens if we start from the assumption that the state is not
the generative source of order, at least not if judged from the perspective of law’s
subjects? And what are the broader implications of such a view for theorising the
relationship between the public, on the one hand, and criminal justice, on the
other? The case of a council estate (social housing project) in England provides a
case in point.1 Local residents often express demands for more policing and harsher
punishments for local offenders. And yet, to interpret such calls for ‘law and order’
as evidence of a popular desire for authority tout court would mean to miss an
important point. Residents appropriate the state into their everyday lives, some-
times in ways that align with the law but more frequently for purposes that escape
the official representatives of law and order. What is more, where the state fails to
provide residents with the protection they want, residents can fall back on informal
violence that gets condemned as unlawful action by the state.
Koch
205
The ethnographic analysis suggests two broader points. First, that dominant
commentary in criminal justice has adopted an understanding of order that is too
narrowly focused on the state. To the extent that people rely upon the state in their
daily lives, it is not a Leviathan that exercises control from the top-down. On the
contrary, they see the state as a personal tool that is instrumentalised according to
localised logics and the demands for action that these pose. Second, by shifting the
focus away from the state’s categories of order and disorder towards citizens’ under-
standings of the state, my analysis also invites a broader reassessment of the rela-
tionship between the public and criminal justice. Scholars have tended to see the
public as a toxic ingredient in criminal justice, as the former’s punitive disposition is
said to be dangerous to the even-handed workings of the latter (Garland, 2014;
LaFree, 2002: 883–884; Zimring and Johnson, 2006: 273; Zimring et al., 2001: 207
ff.). Yet, if my analysis is correct, then the opposite may be the case. As Miller (2013)
has noted, instead of isolating the public from criminal justice policy making, it is
precisely by integrating the views of citizens – particularly those on the margins – that
a different set of demands can be heard that moves beyond a focus on punishment
(Miller, 2013). My analysis then extends the call for a closer attention to the political
nature of questions of state authority and its relation to criminal justice (Barker,
2013; Gallo, 2015; Lacey and Soskice, 2015; Miller, 2013).
The data for this research is based on ethnographic fieldwork. The bulk of my
fieldwork was concentrated on a large council estate of over 11,000 residents situated
on the outskirts of a wealthy city in the south-east of England. Although parts of the
estate have become privately owned and gentrified today, the residents that I spent
most of my time with are in a low income bracket that entitles them to social housing
or to subsidised rent in the private rental sector. They are men and women, mostly
aged between their early 20s and late 30s, of both white British and Afro-Caribbean
descent. Many did not finish high school education and drift in and out of employ-
ment and welfare dependence. The underground economy of heroin and crack cocaine
is flourishing, offering young men in particular access to cash flow that they would
otherwise not have (Koch, 2015). They are in intimate contact with the criminal justice
system, as victims or as perpetrators, and in many cases as both. I spent a period of 18
months between 2009 and 2011 living with families in social housing and volunteering
in a local community centre, with shorter follow-up visits thereafter. I followed people
in their daily activities, participated in their gossip and relationships, and over time,
built a view of how they interact with the criminal justice system. I also interviewed
local officials and sat in various meetings on local crime control issues. The quotes that
follow are based on a few recorded interviews and many more reconstructed notes I
took each day following informal conversations and participant observation.
Criminal justice, the public and punitivism
The public’s presumed vulnerability has become a central reference point in con-
temporary criminal justice discourse. In the UK, this is perhaps best illustrated in
the criminal justice agenda that became central to the New Labour government’s
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Punishment & Society 19(2)
electoral campaign in the lead-up to the 1997 elections. After 18 years out of gov-
ernment and four electoral defeats in a row, New Labour sought to mobilise popular
support by actively re-positioning itself as a party that was going ‘tough on crime
and tough on the causes of crime’. According to New Labour, the most pressing
issues confronting the country at that time were problems of incivilities and low level
crime, referred to as problems of ‘anti-social behaviour’ which affected ‘thousands
of people whose lives are made a misery by the people next door, down the street or
on the floor above or below’ (Labour Party, 1995: 2). It was furthermore...
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