SEARCHING FOR A SOCIAL DEMOCRATIC
NARRATIVE IN CRIMINAL JUSTICE
EMERITUS PROFESSOR DAVID BROWN,
LAW FACULTY, UNSW
SEARCHING FOR A SOCIAL DEMOCRATIC NARRATIVE IN
CRIMINAL JUSTICE
 http://www.youtube.com/watch?v=Q7UX8KASASU
 Always blow on the pie: safer communities together
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.’
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.’
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.
SEARCHING FOR A SOCIAL DEMOCRATIC NARRATIVE
IN CRIMINAL JUSTICE
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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.
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
Comparative penology:
International imprisonment rates
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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
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)
6.4
3.3
9.3
13.6
19.5
0.00
n/a
0.21
0.07
0.36
31.7
33.2
28.2
21.4
0.66
0.87
0.95
0.69
26.2
18.2
8.0
17.2
0.69
0.70
0.72
0.76
7.9
0.74
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
Conservative corporatist (Co-ordinated market economies)
Netherlands
Italy
Germany
France
128
104
94
85
1.51
1.5
1.15
1.71
Social democracies (Co-ordinated market economies)
Sweden
Denmark
Finland
Norway
82
77
75
66
1.1
1.02
2.86
0.95
Oriental corporatist (Co-ordinated market economy)
Japan
62
1.05
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’
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.
The racial component in Imprisonment rates
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
Pratt on Scandinavian ‘exceptionalism’
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
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
‘Justice reinvestment’
 Calculates public expenditure on imprisonment in
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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
‘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
‘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.
‘Justice reinvestment’
 Devolving accountability and responsibility to the
local level
 Data driven –’incarceration mapping’ – linked to
‘asset mapping’ eg Vinson’s ‘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.
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.
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
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
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.
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
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.
Always blow on the pie: safer communities together
 http://www.youtube.com/watch?v=Q7UX8KASASU
 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