When Penal Populism Stops: Legitimacy, Scandal and the Power to Punish in New Zealand
| DOI | 10.1375/acri.41.3.364 |
| Author | John Pratt |
| Published date | 01 December 2008 |
| Date | 01 December 2008 |
364 THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
VOLUME 41 NUMBER 3 2008 PP. 364–383
Address for correspondence: Professor John Pratt, Institute of Criminology, Victoria University
of Wellington, PO Box 600, Wellington, New Zealand. E-mail: John.Pratt@vuw.ac.nz
When Penal Populism Stops: Legitimacy,
Scandal and the Power to Punish in
New Zealand
John Pratt
University of Wellington, New Zealand
This article examines the relationship between the concept of
legitimacy and the power to punish in modern society. It argues that
the rise of penal populism is related to the way in which criminal justice
elites steadily lost legitimacy in the post-1970s period. However, it goes
on to argue, using New Zealand as an illustration, that there are limits to
the power of penal populism. It too can lose its legitimacy when it
breaches the boundaries of morally justifiable punishment levels or when
it loses consent for what it promises to do.
We have become very familiar with what is known as ‘penal populism’ — the way
in which an array of law and order lobby groups, the tabloid press, talkback radio
hosts and callers, right-wing thinktanks, a few academics such as James Q. Wilson
and some evangelising police chiefs spreading the message of ‘zero tolerance’ have
become influential on government policy (see, e.g., Ryan, 2003; Pratt, 2007).1As
this has happened, so the influence of liberal elites — senior civil servants, acade-
mics, penal reform groups and judges who collectively make up the ‘criminal justice
establishment’ — has declined (Loader, 2006). We have also become familiar with
its effects — substantial rises in imprisonment and deteriorating prison conditions.
However, very little consideration has been given to what might be the limits of
this new form of penal power. Current developments in New Zealand, a country
that has been particularly vulnerable to penal populism (see Pratt & Clark, 2005),
illustrate that there clearly are limits to it. In August 2006 its Prime Minister,
flanked by senior ministers and the President of the New Zealand Law Commission,
launched the government’s ‘Effective Interventions Strategy’. She explained that in
a period when recorded crime in New Zealand had dropped by some 25% between
1994 and 2006,2the level of imprisonment in this country had become
too high … our goal must be to get the imprisonment rate back to something more
consistent with that of those countries we consider our peers … the criminal justice
system cannot go on as it is [with] an unacceptably high rate of imprisonment.
(Clark, 2006, p. 1)
She went on to state that prison levels had become ‘economically and socially
unsustainable’ and the new strategy, which included more emphasis on the reinte-
gration of prisoners, community sentences and the establishment of a Sentencing
Council, aimed to reduce the prison population. To put her speech in context, in
1996 there were 4,736 prisoners in New Zealand. In 2006, there were 8,000 and the
rate of imprisonment had increased from 130 per 100,000 of population to 188. Her
own governments since Labour’s election victory in 1999 had overseen the bulk of
this increase.
The article argues that the limits to penal populism relate to the level of legiti-
macy that this new expression of penal power enjoys. That is, the way in which a
system of power is understood to be morally justifiable and for which there is signifi-
cant evidence of consent (Beetham, 1991). As Sparks (1994, p. 15) argues, ‘to
speak of power is almost in the same breath to raise the question of its need for
legitimation, and the presence or absence of legitimacy carries large consequences
for all parties in a system of power relations’. The first part of this article thus
examines the relationship between legitimacy and the power to punish in modern
society. It argues that the rise of penal populism is related to the way in which
criminal justice elites steadily lost legitimacy in the post-1970s period: in the subse-
quent realignment of power relations that ensued, penal populism was able to
become influential. However, the new structure of penal power that it became part
of can also lose its legitimacy when it breaches the boundaries of what is morally
justifiable or when it loses consent for what it promises to do. Under these circum-
stances, we are likely to find a further realignment of penal power taking place, with
populist influences reduced. It should be noted in passing that the article addresses
the relationship between forms of power (in this case, the power to punish) and
legitimacy in western societies with entrenched democracies. Obviously, issues of
consent become far less problematic in totalitarian societies or in societies where
the democratic structure is not robust.
Legitimacy, the Power to Punish and Penal Populism
Beetham (1991) argues that all systems of power seek legitimacy. For much of the
20th century, the legitimacy of democratic governance was maintained by the influ-
ence of the ideas of the dominant over those of the subordinate. The dominant
were not only likely to have control over the most influential forms of knowledge,
such as state broadcasting and the quality press but, in addition, the deference of the
powerless to their rulers meant that the systems of power which they represented
were unlikely to be significantly challenged (Pratt, 2007). In the first few decades of
the post-1945 era particularly, these systems of power placed a high value on scien-
tific expertise that further extended the social distance between the dominant and
the subordinate: ‘wherever science serves as a source of legitimacy, it works anti-
democratically, by assigning the powers of decision-making to the expert at the
expense of the citizen, and to the professional at the expense of the lay person’
(Beetham, 1991, p. 73). Criminal justice policy-making provides a particularly clear
illustration of these power relations. In Britain, much of this was determined by a
small group of civil servants and academics who were able to advise and influence
the government accordingly (Loader, 2006). ‘Ordinary people’ were almost wholly
365
WHEN PENAL POPULISM STOPS
THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
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