SEARCHING FOR A SOCIAL DEMOCRATIC NARRATIVE IN CRIMINAL JUSTICE

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SEARCHING FOR A SOCIAL DEMOCRATIC NARRATIVE IN
CRIMINAL JUSTICE

• EMERITUS PROFESSOR DAVID BROWN,
• LAW FACULTY, UNSW

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SEARCHING FOR A SOCIAL DEMOCRATIC NARRATIVE IN
CRIMINAL JUSTICE

• http//www.youtube.com/watch?vQ7UX8KASASU
• Always blow on the pie safer communities together

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Social Democracy Kevin Rudd, The Monthly 2008?

• The time has come, off the back of the current
  crisis, to proclaim that the great neo-liberal
  experiment of the past 30 years has failed, that
  the emperor has no clothes. Neo-liberalism, and
  the free-market fundamentalism it has produced,
  has been revealed as little more than personal
  greed dressed up as an economic philosophy. And,
  ironically, it now falls to social democracy to
  prevent liberal capitalism from cannibalising
  itself.
• Social-democratic governments face the
  continuing challenge of harnessing the power of
  the market to increase innovation, investment and
  productivity growth - while combining this with
  an effective regulatory framework which manages
  risk, corrects market failures, funds and
  provides public goods, and pursues social
  equity.

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Social Democracy Kevin Rudd, The Monthly 2009

• Social justice is also viewed as an essential
  component of the social-democratic project. The
  social-democratic pursuit of social justice is
  founded on a belief in the self-evident value of
  equality, rather than, for example, an
  exclusively utilitarian argument that a
  particular investment in education is justified
  because it yields increases in productivity
  growth (although, happily, from the point of view
  of modern social democrats, both things happen to
  be true). Expressed more broadly, the pursuit of
  social justice is founded on the argument that
  all human beings have an intrinsic right to human
  dignity, equality of opportunity and the ability
  to lead a fulfilling life. ...Accordingly,
  government has a clear role in the provision of
  such public goods as universal education, health,
  unemployment insurance, disabilities insurance
  and retirement income.

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SEARCHING FOR A SOCIAL DEMOCRATIC NARRATIVE IN
CRIMINAL JUSTICE

• The global financial crisis provides an
  opportunity for a rethink in criminal justice
  policy as part of a more general reconsideration
  of the excesses of neo-liberalism. Rather than
  simply engage in market intervention solely to
  stimulate demand and business as usual,
  attempts should be made to restructure and
  regulate the market in social directions,
  requiring greater environmental sustainability,
  reducing income differentials, curbing cultures
  of greed and gambling in the financial sector,
  re-configuring the tax system in a progressive
  direction and investing in public transport and
  other infrastructure promoting community based
  sharing networks which are not based on a
  constant increase in consumerism, consumption and
  narcissism.

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SEARCHING FOR A SOCIAL DEMOCRATIC NARRATIVE IN
CRIMINAL JUSTICE

• Criminal justice should be part of this
  broadly social democratic narrative. Criminal
  justice issues need to be connected with broader
  social and economic policies. Aspects of this
  connection might involve a range of tasks such as
  
• rerouting penal policy from the exclusive terrain
  of individual culpability, so familiar in
  tabloid, talk-back and political discourse
• engaging in a comparative penology which
  emphasises political economy and inequality
• exploring a range of developments in justice
  reinvestment redirecting resources from the
  burgeoning prison sector into practical
  assistance with ex-prisoner resettlement
• and challenging the pathological
  disciplinarities and imaginary penalities of
  neo-liberal managerialism.  

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Recognising social determinants as well as
individual culpability

• Doctrinal criminal law and popular debate over
  crime located primarily at level of individual
  action, characterised in terms of
  culpability/responsibility, guilt, evil.
• Set of wider discourses which locate causal or
  precipitating factors in social, cultural,
  economic and political forces beyond the
  individual.
• To point to the social determinants of crime not
  inconsistent with holding offenders accountable

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Comparative penologyInternational imprisonment
rates

• United States 738 per 100,000 pop
• Russia 611
• South Africa 335
• New Zealand 186
• United Kingdom 148
• Australia 126
• China 118
• Canada 107
• Italy 104
• Germany 95
• France 85
• Sweden 82
• Norway 66
• Japan 62
• Indonesia 45
• India 30
• Source Walmsley, World Prison Population List,
  7th edn. www.prisonstudies.org

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Comparative penology N. Lacey, The Prisoners
Dilemma (2008) p60
Country Imprisonment rate Per 100,000 2006 homicide rate () Foreign Prisoners Co-ordination index rating (0-1)
Neo-liberal countries (Liberal market economies) Neo-liberal countries (Liberal market economies) Neo-liberal countries (Liberal market economies) Neo-liberal countries (Liberal market economies) Neo-liberal countries (Liberal market economies)
USA South Africa New Zealand England/Wales Australia 737 336 186 148 125 5.56 55.86 2.5 1.6 1.87 6.4 3.3 9.3 13.6 19.5 0.00 n/a 0.21 0.07 0.36
Conservative corporatist (Co-ordinated market economies) Conservative corporatist (Co-ordinated market economies) Conservative corporatist (Co-ordinated market economies) Conservative corporatist (Co-ordinated market economies) Conservative corporatist (Co-ordinated market economies)
Netherlands Italy Germany France 128 104 94 85 1.51 1.5 1.15 1.71 31.7 33.2 28.2 21.4 0.66 0.87 0.95 0.69
Social democracies (Co-ordinated market economies) Social democracies (Co-ordinated market economies) Social democracies (Co-ordinated market economies) Social democracies (Co-ordinated market economies) Social democracies (Co-ordinated market economies)
Sweden Denmark Finland Norway 82 77 75 66 1.1 1.02 2.86 0.95 26.2 18.2 8.0 17.2 0.69 0.70 0.72 0.76
Oriental corporatist (Co-ordinated market economy) Oriental corporatist (Co-ordinated market economy) Oriental corporatist (Co-ordinated market economy) Oriental corporatist (Co-ordinated market economy) Oriental corporatist (Co-ordinated market economy)
Japan 62 1.05 7.9 0.74
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Comparative penology Penal culture and political
economy

• Key factors
• The structure of the economy
• Levels of investment in education and training
• Disparities of wealth
• Literacy rates
• Proportion of GDP on welfare
• Co-ordinated wage bargaining
• Electoral systems
• Constitutional constraints on criminalisation
• Institutional capacity to integrate outsiders

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Comparative penology Penal culture and political
economy

• The relatively disorganised, individualistic
  liberal market economies particularly vulnerable
  to penal populism -liberal/co-ordinated market
  economy distinction.
• Co-ordinated systems which face long term
  relationships through investment in education
  and training, generous welfare benefits, long
  term employment relationships -have been able to
  resist the powerfully excluding and stigmatising
  aspects of punishment cf liberal market systems
  oriented to flexibility and mobility turn to
  punishment as a means of managing an excluded
  population.

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The racial component in Imprisonment rates
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Indigenous imprisonment rates

• AboriginalImprates2008AIC.pdf
• Indigenous Australians 1 in 4 of prison
  population
• 2000- 2008 imp rate for Indigenous increased by
  34 from 1,653 per 100,000 Indigenous adults to
  2,223
• Increase 7 times that of non-Indig -123 to 129
  per 100,000
• BOCSAR 1 in 4 young Indig men are being processed
  through the crim justice system every year
• Estimated that in 5 young Indig males under some
  form of criminal justice supervision

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Pratt on Scandinavian exceptionalism
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Pratt on Scandinavian exceptionalism

• Low rates exceptional prison conditions
• Origins in cultures of equality
• welfare state universal social security
• high levels of trust and solidarity
• bodily punishments scaled down or abolished

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Pratt on Scandinavian exceptionalism

• Strong state bureaucracies with considerable
  autonomy and independence from political
  interference
• Strong interventionist central state
• mass media controlled by public organisations
• High levels of social capital
• Power and influence of expertise

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Justice reinvestment

• Calculates public expenditure on imprisonment in
  localities with high concentration of offenders
  and diverts a proportion of that expenditure back
  into programs and services in those communities.
• US developments Council of State Government
  Justice Centre -US state expenditure on
  corrections risen from 12 billion to 52 billion
  1988-2008.
• Half of those released will be reincarcerated
  within 3 years
• Prison reductions in some US states New York 20
  2000-2008 New Jersey 19 1999-2009
• Support from business leaders PEW Foundation
  Report Right-Sizing Prisons 2010

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Justice reinvestment

• UK developments House of Commons Justice
  Committee Cutting Crime the case for justice
  reinvestment (2010)
• Channel resources on a geographically targeted
  basis to reduce crimes which bring people into
  the prison system
• crim justice system facing a crisis of
  sustainability prison as a free commodity
  while other rehab and welfare interventions
  subject to budgetary constraints
• Recommended capping of prison pop and reduction
  to 2/3 current level and devolution of custodial
  budgets - financial incentive for local agencies
  to spend money in ways which will reduce prison
  numbers

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Justice reinvestment

• Senate Legal and Constitutional Affairs Committee
  Report Access to Justice 2009 Rec 21 the
  federal, state and territory governments
  recognise the potential benefits of justice
  reinvestment, and develop and fund a justice
  reinvestment pilot program for the criminal
  justice system.
• Aust 2008-09 2.79 billion on prisons, 205 per
  prisoner per day
• Spatial dimension million dollar blocks
  millions are being spent on the neighbourhood
  but not in it
• Papunya NT -72 adults in prison at cost of
  3,468.960 for community of 400 people.

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Justice reinvestment

• Devolving accountability and responsibility to
  the local level
• Data driven incarceration mapping linked to
  asset mapping eg Vinsons post codes cf hot
  spot mapping
• Links with National Indigenous Law and Justice
  Framework 2009-2015
• Queensland Justice Agreement specific goal to
  reduce the rate of ATSI people incarcerated by
  50 by 2011.

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Criminogenic effects of incarceration

• cf limited economic benefits of prison Spelman
  -10 increase in imp rate produces 2-4 decrease
  in crime rates
• Effects of incarceration itself crime
  education fracturing of family and community
  ties hardening and brutalisation effects on
  mental health.
• Post incarceration effects- labeling deskilling
  reliance on criminal networks reduced employment
  opportunities civil disabilities.
• Third party effects on families and communities.

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Criminogenic effects of incarceration

• high rates of imprisonment break down the social
  and family bonds that guide individuals away from
  crime, remove adults who would otherwise nurture
  children, deprive communities of income, reduce
  future income potential, and engender deep
  resentment toward the legal system. As a result,
  as communities become less capable of managing
  social order through family or social groups,
  crime rates go up - Rose and Clear

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Criminogenic effects of incarceration

• Mass imprisonment
• normalisation, transmission and reproduction of
  imprisonment
• Levy -20 of Aboriginal children have a parent or
  carer in prison
• Incarceration one more contributor to social
  dysfunction weakening communities and reducing
  social capital
• reformulate the key question Vera Institute the
  pivotal question for policymakers is not Does
  incarceration increase public safety, but rather
  is incarceration the most effective way to
  increase public safety?
• redirecting resources from the burgeoning prison
  sector into practical assistance with ex-prisoner
  resettlement reduce recidivism rates

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challenging the pathological disciplinarities
and imaginary penalities of neo-liberal
managerialism.  

• neoliberalism has inflected disciplinarities in
  the direction of the pathological and away from
  democratic rule usage (Carlen 2008 431).
• Similarly in relation to managerialism,
  neoliberal formulations of risk, KPIs and audit
  criteria with their emphasis on narrowly defined
  notions of efficiency and cost, increase the
  tendency for audit measures to become inward
  looking ends in themselves, eschewing more
  broadly defined social aims and outcomes that
  were and are aspirations under social welfarist
  and social democratic regimes, however much they
  might be difficult to measure, flawed or unmet in
  practice.

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Conclusion

• Prospects of reversing the expansion of
  imprisonment depend at most general level on
  mitigation of neo-liberal political, economic and
  social policies argue for a politics of
  inclusion, social welfare provision and social
  solidarity renewal of social democracy
• Imprisonment rates need to be consciously reduced
  as matter of government planning
• Imp rates not just an aggregation of individual
  criminal acts but artifacts of social, economic
  and political and legal policy

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Conclusion

• Adopt justice reinvestment approaches
• Recognise criminogenic effects of incarceration
• policy and resources diverted from the custodial
  to welfare, educational and training programs in
  community settings.
• challenge the pathological disciplinarities and
  imaginary penalities of neo-liberal
  managerialism.  

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Always blow on the pie safer communities together

• http//www.youtube.com/watch?vQ7UX8KASASU
• Not just blowing on the pie fairer sharing of
  the pie
• Social justice is also viewed as an essential
  component of the social-democratic project. The
  social-democratic pursuit of social justice is
  founded on a belief in the self-evident value of
  equality, rather than, for example, an
  exclusively utilitarian argument that a
  particular investment in education is justified
  because it yields increases in productivity
  growth.. Kevin Rudd