A New Leviathan: Benefit Sanctions in the Twenty‐first Century

AuthorMichael Adler
Date01 June 2016
Publication Date01 June 2016
DOIhttp://doi.org/10.1111/j.1467-6478.2016.00749.x
JOURNAL OF LAW AND SOCIETY
VOLUME 43, NUMBER 2, JUNE 2016
ISSN: 0263-323X, pp. 195±227
A New Leviathan: Benefit Sanctions in the
Twenty-first Century
Michael Adler*
This article highlights the spectacular growth of benefit sanctions in
the United Kingdom which, at their peak, exceeded the number of fines
imposed in the criminal courts. It proposes a three-fold typology of
monetary sanctions ± punitive judicial sanctions, exemplified by court
fines, regulatory administrative sanctions, exemplified by parking
penalties, and disciplinary administrative monetary sanctions,
exemplified by benefit sanctions ± and compares them in terms of
their main aims, how they are imposed, whether the interests of those
sanctioned are protected, their severity, the socio-economic charac-
teristics of offenders, the hardship caused, how proportionate they are,
and whether they are compatible with justice. It argues that they are
particularly problematic because their severity causes great and
disproportionate hardship, and because, in addition to punishing
offenders, they also attempt to discipline them by managing their
behaviour, and concludes that, in the United Kingdom, they function as
a key instrument for disciplining and managing the poor.
195
*School of Social and Political Science, University of Edinburgh, Chrystal
Macmillan Building, 16A George Square, Edinburgh EH8 9LD, Scotland
michael.adler@ed.ac.uk
Earlier versions were presented at a seminar on `Punishment and Welfare' at Edinburgh
University Law School in January 2015, and at the SLSA Conference at the University of
Warwick, 31 March±2 April 2015. I would like to thank David Webster for producing the
statistics on benefit sanctions in a usable format, Caroline Sheppard and colleagues for
helping me to find my way around parking penalty statistics, and David Garland for his
generous encouragement and support throughout. I am very grateful to David Garland,
Simon Halliday, Richard Jones, Grainne McKeever, Adrian Sinfield, and David Webster
for very helpful comments on earlier drafts and to the five anonymous reviewers. I take
full responsibility for any remaining errors and shortcomings.
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School
INTRODUCTION
This article describes the changing landscape of monetary sanctions and, in
particular, the growth of benefit sanctions in the United Kingdom. For most
of the twentieth century, monetary sanctions, in the form of fines for minor
crimes and offences, were the prerogative of the criminal courts. Then,
towards the end of the century, because the courts were not seen to be a
particularly effective way of regulating high-volume parking and motoring
offences, responsibility for them was transferred to local authorities and,
within a few years, the number of monetary penalties that were imposed
administratively came to overshadow the number that were imposed
judicially. But, at about the same time, the Department for Work and
Pensions (DWP) came to attach greater importance to the sanctions it could
impose on claimants who failed to meet its administrative requirements and,
as unemployment rose, the incidence of these benefit sanctions
1
grew at an
alarming rate.
This article puts forward a three-fold typology of monetary sanctions:
punitive judicial sanctions, exemplified by court fines; regulatory admini-
strative sanctions, exemplified by park ing penalties; and disciplinary
administrative sanctions, exemplified by benefit sanctions.
2
It is in six
parts. Part I provides a brief history of each of the three types of monetary
sanction and draws attention to increases in the severity of benefit sanctions.
Part II describes recent trends in the incidence of the three types of monetary
sanction. Part III summarizes the current state of play. Part IV puts forward a
three-fold typology of monetary sanctions and compares their main features.
Part V argues that benefit sanctions are particularly problematic, mainly
because their severity causes great and disproportionate hardship, and
196
1 In the United Kingdom, benefit sanctions are frequently referred to as `welfare
sanctions'. However, because `welfare' has such different connotations in the United
States, where it refers to public assistance, and because, in the criminological
literature, the term `welfare sanction' is used to refer to welfare-orientated com-
ponents in what Garland refers to as a `penal culture of control' (D. Garland, The
Culture of Control: Crime and Social Order in Contemporary Society (2001)), the
term `benefit sanctions' is used in this article to describe the sanctions that are applied
by Jobcentres to those who are in receipt of benefits. Although benefit sanctions differ
from court fines and traffic penalties in that they do not have to be paid to the
institution that imposes them, their effect in reducing the disposable income of those
who receive them is the same and, for this reason, they can be thought of as monetary
sanctions.
2 It is fairly obvious that court fines, traffic penalties, and benefit sanctions do not
exhaust the domain of monetary sanctions because these also include fines imposed
by regulatory a gencies on regu lated bodies th at fail to achiev e prescribed
performance standards, awards of compensation for negligent behaviour, and awards
of damages for breach of contract. However, this article focuses on court fines, traffic
penalties, and benefit sanctions because they are, in sheer bulk, the most numerous,
and because they apply to individuals rather than institutions.
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School
because, in addition to punishing offenders for a crime or offence committed,
they also attempt to discipline them, in this case by pressurizing them into
taking low-paid and insecure jobs,
3
and asks how the problems caused by
benefit sanctions could be ameliorated, while Part VI points out that, in the
United Kingdom, benefit sanctions have become an important mechanism
for disciplining and managing the poor and briefly discusses the implications
of this development for public policy and academic research.
I. THE HISTORY OF MONETARY SANCTIONS
1. The twentieth-century inheritance
In the United Kingdom, the use of the fine as a sentencing option in its own
right increased throughout the twentieth century, especially in the period
after the Second World War.
4
This was, in part, due to the realization that
short terms of imprisonment were counterproductive and, in part, to the fact
that an increasing number of offenders earned enough to enable them to pay
a fine.
5
By the 1960s, over 1 million fines per year were imposed by the
criminal courts and the number remained at about this level until the end of
the century. As a proportion of court-imposed sentences, fines rose from
about 45 per cent of male adult offenders in 1960 to around 60 per cent in the
mid-1970s.
6
After the introduction of the Road Traffic and Roads Improvement Act
1960, fixed penalties were introduced for a number of minor parking and
motoring offences. By paying the penalty prescribed for the offence directly
into the court, the offender could thereby avoid prosecution. Later on, the use
of fixed penalties was extended to cover a wide range of motoring offences,
for example, speeding offences, anti-social behaviour offences, public order
197
3 See T. Shildrick, R. MacDonald, C. Webster, and K. Garthwaite, The low-pay, no-pay
cycle: Understan ding recurrent po verty (2010), at ttp://www.goog le.co.uk/
?gws_r d=ssl #q=th e+low- pay+n o-pay +cycle +unde rstan ding+r ecurr ent+p overt y>.
Based on research in Teesside, this report concludes that:
contrary to the widely held view that `employment is the best route out of
poverty', the sorts of work available to [those who were interviewed] kept them in
poverty rather than lifting them out of it. The pattern of low aid and insecure jobs
that returned young people to unemployment found in our earlier studies had not
changed. The same individuals, now aged 30 to 40, still contend with the same
vicious cycle. Moreover, interviews with older people (aged 40 to 60) showed that
these patterns . . . are often long-term, stretching across generations.
4 Fines had, of course, been used prior to the twentienth century, mainly in conjunction
with imprisonment. However, from the late nineteenth century onwards, fines came to
be used as a sentence in their own right: see P. O'Malley, `Theorizing Fines' (2009)
11 Punishment and Society 67.
5 N. Walker, Crime and Punishment in Britain (1968) 230.
6 A. Ashworth, Sentencing and Criminal Justice (2010) 327.
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School

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