Punishment, legitimate policies and values: Penal moderation, dignity and human rights
| DOI | 10.1177/1462474515590895 |
| Date | 01 July 2015 |
| Published date | 01 July 2015 |
| Author | Sonja Snacken |
| Subject Matter | Articles |
Punishment & Society
2015, Vol. 17(3) 397–423
!The Author(s) 2015
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DOI: 10.1177/1462474515590895
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Article
Punishment, legitimate
policies and values: Penal
moderation, dignity and
human rights
Sonja Snacken
Vrije Universiteit Brussel, Belgium
Abstract
Twenty years ago, we described how changing prison populations in western countries
result from a complex interaction between criminality, external (demography, econ-
omy), internal (criminal justice policies) and intermediate factors (public opinion, politics
and media). While the outcome of these interactions is contingent, we advocated a
reductionist penal policy in order to curb penal inflation. Subsequent macro-sociological
analyses and comparative penological studies raised important questions though con-
cerning the possibilities for political action to influence levels of punitiveness. This
article looks again into the scope for political decision making in fostering penal mod-
eration in western countries. By elaborating on a relational concept of ‘legitimacy’ of
policies, we argue that moderate penal policies can politically be legitimized through
appeal to dignity and human rights as fundamental values.
Keywords
dignity, human rights, legitimacy, punishment, values
Introduction
With many western countries facing increasing prison populations in the 1980s, we,
with other scholars, started to look for possible explanations. Based on an overview
of the international literature, we concluded in the 1990s that – contrary to the
popular view of a direct link between crime rates and prison rates – changing prison
populations result from a complex interaction between criminality, external (dem-
ography, economy), internal (criminal justice policies) and intermediate factors
Corresponding author:
Sonja Snacken, Department of Criminology, Research Group Crime and Society, Research line Penality and
Society, Vrije Universiteit Brussel, Belgium.
Email: ssnacken@vub.ac.be
(public opinion, politics and media) (Beyens et al., 1993; Snacken et al., 1995).
Penal inflation and prison overcrowding are hence not a fate to be suffered pas-
sively, but (we argued) at least partly the result of policy. Following Rutherford’s
(1984) analysis of available policy choices, we advocated a reductionist penal policy
in order to curb penal inflation.
However, increased attention to similarly large macro-sociological and cultural
developments in late-modern societies also raised questions about the possibilities
for political action to curb such inflation (Garland, 2001, 2004). This led to a boom
in comparative studies aimed at trying to understand similarities and differences in
levels of punitiveness. The concept of punitiveness itself was enlarged, encompass-
ing not only imprisonment rates but also more qualitative criteria relating to the
treatment of offenders and prisoners. Discussions about ‘reductionist’ policies were
consequently replaced by the larger concept of ‘penal moderation’ (Loader, 2010).
Now, 20 years later, we revisit our initial analysis by, first, evaluating its con-
tinued validity in light of subsequent research. Second, we consider again the scope
for political decision making in fostering penal moderation in western countries.
Third, by elaborating on the relational concept of legitimacy of policies as devel-
oped by Beetham (1991) and Bottoms and Tankebe (2012), we argue that moderate
penal policies can politically be legitimized through appeal to dignity and human
rights as fundamental values.
Mechanisms of changing prison populations: The importance
of penal policy
Figure 1 provides a visual overview of the complex interactions between several
factors influencing changing prison populations.
Twenty years later, while the model still seems valid, each of its mechanisms has
since been further developed and several new phenomena must be introduced.
First, I summarize our earlier findings in light of more recent studies, with special
emphasis on the importance of penal policy.
External factors: Demography and economy – and policy...
In the early 1990s, prison population prognoses in the Netherlands, Germany, the
UK, Australia and the USA were offered based on demographic changes in western
societies (Blumstein, 1987; Hesener and Jehle, 1987; Home Office, 1993; MacKenzie
et al., 1988; Projectgroep Structuurplan, 1989). The baby boom after the Second
World War, followed by a baby bust, was supposed to influence prison populations
through the well-established correlation between age and criminality (Farrington,
1986; Loeber and Farrington, 2014). The influence of age structure on prison
populations proved much more elusive though, as overriding criminal policies or
practices strengthened or weakened its effect (Du
¨nkel, 1989; Graham, 1990;
Zimring and Hawkins, 1991). This became even clearer over the last 20 years, as
the introduction of longer prison sentences, restrictions on parole, whole life
398 Punishment & Society 17(3)
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