Policy convergence, politics and comparative penal reform: Sex offender notification schemes in the USA and UK
| DOI | 10.1177/1462474513504801 |
| Published date | 01 December 2013 |
| Author | Tim Newburn,Trevor Jones |
| Date | 01 December 2013 |
| Subject Matter | Articles |
Article
Punishment & Society
15(5) 439–467
! The Author(s) 2013
Policy convergence,
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politics and comparative
DOI: 10.1177/1462474513504801
pun.sagepub.com
penal reform: Sex
offender notification
schemes in the USA
and UK
Trevor Jones
Cardiff University, UK
Tim Newburn
London School of Economics, UK
Abstract
An important theme in recent comparative penology has concerned the apparent con-
vergence of penal policy between ‘neo-liberal’ Anglophone jurisdictions exemplified by
the adoption of a punitive and politicized approach to crime and punishment. At the
same time, important divergences from this pattern have been noted in other national
contexts, not least in a number of Western European countries. This article returns to
these debates in light of the history of the passage of federal and state legislation in the
area of sex offender community notification in the United States (Megan’s Law) together
with campaigns to enact similar legislation in the UK (Sarah’s Law). We compare the
process of policy change on both sides of the Atlantic and analyse the factors shaping
key policy decisions. A central objective is to explore the ways in which broader cross-
national influences and distinctive national political institutions and structures work to
shape the agendas and actual decisions of key policy actors. The article concludes with
some observations about the nature of convergence and divergence in the penal poli-
cies of different nations.
Keywords
community notification, comparative penal policy, policy making, policy transfer, sex
offender registration
Corresponding author:
Trevor Jones, School of Social Sciences, Cardiff University, Glamorgan Building, King Edward VII Avenue,
Cardiff, Wales CF10 3WT, UK.
Email: JonesTD2@Cardiff.ac.uk
440
Punishment & Society 15(5)
Introduction
In the past decade several writers have highlighted the international spread of penal
policies that appear to have their origins in the USA (Nellis, 2000; Wacquant,
1999). Such policies have included (among other things) the privatization of crim-
inal justice and correctional agencies, the spread of ideas and practices associated
with ‘zero tolerance’ policing, mandatory minimum sentences for repeat offenders,
the introduction of youth curfews, the war on drugs and increasing rates of incar-
ceration (Newburn, 2002). In the UK, these developments have sometimes been
perceived as straightforward policy ‘imports’ from the USA, although the empirical
evidence suggests that the situation is more complicated than this (Jones and
Newburn, 2007). Nevertheless, to varying degrees and in different ways, it does
seem that US influences have been important in inspiring substantive changes in
UK crime control policies.
This article focuses on an area of penal policy – sex offender community noti-
fication schemes – where initial attempts at apparently US-inspired policy change
in the UK were relatively unsuccessful, there having been considerable professional
resistance to the introduction of public notification. Despite the existence of similar
high profile cases of sex offending against children in both the USA and the UK,
and the launch of a campaign in the UK in 2000 with the goal of introducing
legislation modelled on existing US sex offender notification legislation, for a con-
siderable period of time the British government resisted populist pressures to intro-
duce such a statute (Rutherford, 1997; Silverman and Wilson, 2002). Indeed, until
the first half of 2006, the government’s opposition to community notification
schemes appeared to be unswerving. As such this arena provided what was poten-
tially a case study in failed ‘policy transfer’.
Following this, however, there was something of a shift of direction. In June
2006 the then Home Secretary John Reid initiated a review of policy that was to
culminate initially in the introduction of a series of notification pilot programmes
and, subsequently, a sex offender notification scheme to members of the public.
These developments might be taken to demonstrate the ultimate futility of resist-
ance to broader populist pressures in national contexts where the interplay of
social, political and cultural factors produces particular ‘constructions of risk’
(McAlinden, 2012). This view would take the emergence of notification schemes
in the UK as being entirely consistent with a more punitive approach to dealing
with sex offenders (and offenders more generally) that continues to set the coun-
try apart from many other Western European nations. On the surface these
changes, after the initial ‘failure’, could also be seen as a significant example of
successful policy transfer, with a British notification scheme introduced at least
partially along the lines of extant US schemes. However, against this, we argue
that there remain very substantial differences between what has emerged in the
UK and what exists in many parts of the USA. These differences, we argue, are
partly the result of the continued practitioner resistance to elements of notifica-
tion, as well as being a pragmatic adaptation to populist pressures on the part of
political and professional elites.
Jones and Newburn
441
The article is divided into four substantive sections. The first section outlines
debates about policy convergence and policy transfer in crime control drawing on
the growing body of comparative work on penal policy. The second section pro-
vides an account of the development of sex offender registration in the USA and
the third does the same for the UK. In the final section of the article we explore
these comparative policy developments, seek evidence for possible ‘policy transfer’
in this case and consider some of the mediating factors that have worked to limit
and mould what may well have initially been US policy ideas into a distinctively
‘British’ form.
Cross-national convergence and variation in penal policy
There is now an extensive research literature that, in different ways, explores the
extent, possible causes and potential implications of ‘globalization’ in penal policy.
A highly influential body of work within this has sought to explain an apparently
growing similarity in penal policy approaches across many western nations, and in
particular, the emergence of highly politicized and punitive policies in policing,
sentencing and punishment. Although the emphases are different, these accounts
share the view that structural and economic shifts in ‘late modern’ societies are
predisposing nation states towards more punitive policy stances, and leading to a
degree of cross-national policy convergence. For example, Christie (2000)
explained growing incarceration rates over the last decades of the 20th century
with reference to the ‘commodification’ of crime control, and the activities of the
‘prison-industrial complex’, a coalition of commercial penal and industrial interests
that profit from penal expansion. Loı¨c Wacquant has argued that penal severity in
the USA is explained by the function that it performs for regulating the poor and
aiding the operation of capitalist production. He suggests further that European
nations are increasingly bending to the pressures of global capitalism that drive
Europe as well as the USA down the route of penal expansionism (Wacquant,
1999, 2001). David Garland (2001) has charted the emergence of a ‘culture of
control’ in the UK and USA during the latter part of the 20th century, suggesting
that the style and substance of penal policy in the UK and USA have become
increasingly similar in recent years. A key part of the explanation for this concerns
fundamental shifts of social structures and cultural configurations visible across
many ‘late modern’ capitalist societies.
This body of work has been hugely influential and provides sophisticated socio-
logical analyses of global penal trends. However, such accounts remain at a broad
level of generalization and many lack detailed exploration of ‘the empirical par-
ticulars’ (Garland, 2001). Critics have argued that such accounts tend to underplay
persistent variations in national and local penal contexts. Thus, a different strand
of scholarship has taken penal variation, rather than convergence, as its starting
point and attempted to delineate the factors that shape such variation. The striking
evidence from cross-national comparative consideration of penal trends (Tonry,
2004a) suggests that the thesis of a general shift towards punitive penal policies has
442
Punishment & Society 15(5)
been over-stated. There is a tendency to extrapolate from experience in the USA
and UK to other western countries where punitive trends are substantially less
marked (Tonry, 2007). Cavadino and Dignan (2006) have compared levels of
penal severity across ‘families’ of nations based on an index of political, institu-
tional, social and economic variables. They found that there are strong associations
between levels of penal severity and the characteristics of different types of poli-
tical-economic organization. For example, ‘neo-liberal’ countries (such as the UK,
USA, Australia and New Zealand) are notably harsher in their penal policies than
‘conservative corporatist’ countries (such as France and Germany) and ‘social
democratic’ nations (such as Sweden and Finland). This kind of analysis has
been further developed by other scholars, who identify particular features of the
political economy and social organization of different democratic countries as key
to understanding...
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