Punitive reform and the cultural life of punishment: Moving from the ASBO to its successors
| Author | Kevin J Brown |
| Date | 01 January 2020 |
| Published date | 01 January 2020 |
| DOI | 10.1177/1462474519831347 |
| Subject Matter | Articles |
Punishment & Society
Punitive reform and
2020, Vol. 22(1) 90–107
! The Author(s) 2019
the cultural life of
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DOI: 10.1177/1462474519831347
punishment: Moving
journals.sagepub.com/home/pun
from the ASBO
to its successors
Kevin J Brown
School of Law, Queen’s University, Belfast
Abstract
This paper explores the process of punitive reform through a cultural theory lens. The
existing literature focuses on high-end punishments of historical pedigree e.g. impris-
onment or the death penalty. This paper instead takes as its focus low-end, contem-
porary punishments. In doing so, it provides original insights into the utility a cultural
methodology can bring to understanding punitive reform in the digital age. It tests the
applicability of Philip Smith’s theory of the cultural life of punishment to case studies of
the Anti-Social Behaviour Order (ASBO) and its replacements in England and Wales,
the Criminal Behaviour Order and the Injunction. The ASBO was a punitive zeitgeist of
its time becoming rooted in popular culture. However, it was ultimately abolished after
attracting a predominantly negative cultural narrative. Thus far, after attracting some
controversy at the legislative stage, the Criminal Behaviour Order and Injunction have
received minimal scrutiny, despite being more problematic than their predecessor. This
paper argues that the lower cultural impacts of the new punishments are responsible
for the lack of scrutiny.
Keywords
anti-social behaviour, ASBO, criminal behaviour order, culture of punishment, public
imagination, punitive zeitgeist
Corresponding author:
Kevin J Brown, School of Law, Queen’s University, Belfast.
Email: k.brown@qub.ac.uk
Brown
91
Introduction
The Anti-Social Behaviour Order (ASBO) was a punitive measure that captured
the public imagination in the United Kingdom to an extraordinary degree. It was
introduced in 1999, as a flagship provision of the Labour Government that had
been elected the year previous. It was designed to combat the newly identified
scourge of anti-social behaviour (ASB). In the 16 years before its abolition and
replacement in 2015, over 24,000 orders were issued (Home Office, 2014), with
‘ASBO’ becoming a term imbued with significant popular cultural meaning.
It functioned as a punitive zeitgeist for the period. The ASBO, however, was ulti-
mately abolished after attracting significant criticism and a predominantly negative
cultural narrative. The replacements to the ASBO, the Criminal Behaviour Order
(CBO) and the Injunction, operate procedurally in a similar manner and are used
to deal with the same types of behaviour as their predecessor. To the extent that
they differ, the replacements provide fewer due process protections for potential
recipients, therefore making them even more problematic and open to criticism.
The successors caused some controversy at the legislative stage, but four years after
their introduction, there has been minimal critique of the CBO or Injunction.
This paper argues that a key reason for this difference in levels of scrutiny is the
fact that neither the CBO nor Injunction have become embedded in the public
imagination. This paper discusses the wider implications that can be drawn from
this case study for our understanding of the relationship between culture, punitive
reform and scrutiny.
As a theoretical basis, this paper takes as its primary influence Philip Smith
(2008). For Smith (2008: 1–2), understanding the ‘“cultural life” of punishment [is]
truly important in explaining the evolution and form of penal activity’:
Even where punishment looks most rationalised and bureaucratic these unruly [cul-
tural] meanings exert their insistent and surprising influence. They can toll the bell on
the outmoded technique and ring in the new, fanning the flames of scandal and
celebration alike. [Punishments]. . . become the object of fascination, fetishism, amuse-
ment and dread. Never. . . closed off from public interest, punishment is always the
locus of intense narrative activity and contestation within wider civil discourse.
(Smith, 2008: 1)
In exploring these issues, Smith (2008) advocates a case study methodology. Smith
selected as his case studies punishments that have had a high impact on the public
imagination and that are towards the more serious end of the punitive spectrum
(e.g. the death penalty and imprisonment). This has left under-researched from this
theoretical perspective the cultural life of de minimis and hybrid civil-criminal
penalties. With the use of such punishments on the rise, not just in the United
Kingdom, but across much of the common law world (Hendry and King, 2017),
gaining a better understanding of their cultural life is important. A study of the
ASBO, CBO and Injunction with very different cultural impacts to one another
92
Punishment & Society 22(1)
provides an opportunity to test the broader applicability of Smith’s cultural anal-
ysis of penal evolution. Furthermore, a case study of three distinctively modern-
day punishments allows for an exploration of the utility of Smith’s approach to
punitive reform in the digital age.
This study adopts the four interconnected elements of Smith’s (2008: 56) meth-
odology for exploring the relationship between punishments and culture. The first
requires interpretative activity to establish the meanings attached to a particular
punishment. The second, an exploration of how those meanings are ‘influenced by
historically embedded cultural codes, interests, hierarchies and social actions’
(Smith, 2008: 56). The third, an analysis of how popular culture influences wider
collective representations of a punishment. The fourth, an understanding of how
punishment reform can be ‘explained in terms of communication and semiotics’
(Smith, 2008: 56).
A limitation of a Smithian cultural analysis is that in focussing on ‘culture and
meaning’, alternative explanations of penal evolution can be ignored, in particular,
those based on ‘power and control’ (Garland, 2009). In his writing, Smith (2008)
sets out to provide a generalist theory of punishment which deliberately positioned
itself as an alternative to the approach of Foucault (1977) and Garland (2002) for
whom the evolution of punishment is principally driven by the desire to extend
control over individuals and society. As Garland (2009) identifies in his generally
positive review of Smith’s work, ‘culture and meaning’ and ‘power and control’
explanations need not be mutually exclusive. Both perspectives have the potential
to provide complementary and rich insights into the development of a multi-
dimensional understanding of the process of penal reform (Garland, 2006).
In focussing on cultural meaning, this paper is improving the understanding of
the mechanisms by which governments seek, and sometimes struggle, to control or
exert power through the punitive cultural narrative associated with reform.
A potential objection to this case study is that neither the ASBO, nor its suc-
cessors,
are
technically
penal
sanctions,
but
rather
preventative
orders
(MacDonald, 2003). However, this paper argues that these orders are punishments
that are lacking traditional criminal legal procedural protections. Both the ASBO
and now its successors involve a court imposing on recipients restrictions on their
freedoms (e.g. curfews, association restrictions, geographical exclusions) justified
on the basis of past misconduct and future risk of further misbehaviour.
Any breach of the conditions of these orders can lead to lengthy periods of impris-
onment. Additionally, as will be discussed, the cultural narrative associated with
the ASBO and its successors very much frame the orders as punitive.
The next section of this paper examines how the ASBO became a zeitgeist
punishment of its time. It examines how this populist cultural meaning initially
protected the order from its critics, but ultimately undermined it as a form of
punishment by providing opponents with the publicity to portray the order as
an ineffective and unjust gimmick. The paper then turns to explore how the
replacements to the ASBO were nearly not introduced after proposals quickly
attracted a negative cultural narrative through a wider civil discourse campaign
Brown
93
that was very much of the digital age. The paper then examines how despite this
conspicuous start, the CBO and Injunction have made very little cultural impact
almost four years after their introduction. It examines why this is the case, how this
can be read as a possible success story for the Government that introduced it, and
the implications of this for effective scrutiny of the reforms. The paper concludes
by discussing the broader insights gained into the relationship between the cultural
embeddedness of a punishment, scrutiny and reform.
The ASBO: The rise and fall of a zeitgeist punishment
According to Smith (2008: 37):
All punishments. . .are intended to say something about the nature of society, the
qualities of the criminal, the features of a good society, the evils of crime, or
the properties of the criminal justice system itself.
Whilst Smith did not have the ASBO in mind when writing this, the highly expres-
sive attributes of the order cover all the various narrative functions mentioned by
him. Before their election to government in 1997, the Labour Party was promoting
their proposals for the ASBO and the related concept of ASB as tools to express its
new tougher approach to crime (Tonry, 2010). Under Tony Blair, first in his role as
Home Affairs...
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