Following the British criminologist, Joe Sim (2009), there has been an 'intensification of punishment' in recent years under successive New Labour governments. The trend toward increasing punitiveness in the field of criminal justice is not entirely new. Rather, it can be said to have its roots in the neoliberal politics of Thatcherism. Even if imprisonment rates actually decreased towards the end of the 1980s and in the early part of the 1990s (1999), the beginnings of a more authoritarian approach to the problem of law and order could already be detected at this time. The 1980s saw the police granted increasingly wide powers to stop, search, arrest and detain those whom they suspected of criminal activity, and the decade was also, of course, marked by the use of the criminal law to control public order problems, most vividly during the Miners' Strike of 1984-85. The 1986 Public Order Act was used to limit the right to protest, and a series of laws famously restricted the legal immunity which had traditionally been granted to labour unions and their members when they became involved in an industrial dispute. These policies fit with a classically authoritarian approach to problems of crime and disorder which, it could be argued, form part of Conservative Party tradition. Yet, they were also informed by the particular political conjuncture of the 1980s, namely the rise to prominence of neoliberal ideas.
The desire to liberate the market from restrictive forces goes some way to explaining the use of the law to severely curb trade union activity, but it also helped to inform a number of other changes made to the criminal justice system. For example, the decision to privatise prisons, eventually embodied in the Criminal Justice Act 1991, was largely informed by neoliberal considerations. It was the free market think tank, the Adam Smith Institute, which first mooted the idea in 1984 (Ryan, 2003, p. 83) and its 1987 Report, The Prison Cell, proved particularly influential (Young, 1987). In the 1990s, neoliberal ideas began to permeate the functioning of the criminal justice system in more subtle ways. As the social fallout from the Thatcher years became more visible, notably on account of the rise of social exclusion, poverty and inequality, the neoliberal project began to suffer from a legitimacy deficit. 'Governing through crime', to borrow Jonathan Simon's term (Simon, 2007), became a useful strategy of governance, enabling the State to 'manage' the negative social consequences of neoliberalism whilst simultaneously distracting attention from its causes. Governing through crime involves the State redefining social problems as crime problems; for example, problems such as unemployment, educational failure and single parenthood are now considered not just as social problems but often also as the principal causes of crime. Crime has thus become the legitimate sphere of state intervention as government's capacity to effectively tackle social problems is increasingly circumscribed by its economic policy. The inevitable consequence is the growth of authoritarianism as the line between social and penal interventionism becomes blurred.
The Major government was the first to adopt a particularly tough approach to crime control and to turn its back on the welfarist approach which had characterised the post-war years (welfarist ideology was still prominent within the Home Office throughout the 1980s). The new approach placed ever more emphasis on the responsibility of the individual criminal rather than on the possible structural causes of crime. However, it was only under New Labour that the British government first ended up really governing through crime'. This was an ideal way for New Labour to tackle social problems, allowing it to differentiate itself from the Conservative governments of the past, whilst it continued to follow the Thatcherite economic policies which had helped to exacerbate them. There was a move away from pure authoritarianism towards considerably more interventionism in both the penal and social spheres. Social and crime problems were henceforth to be tackled via a grand project of remoralisation focusing on reinforcing individual responsibility. It is increased state intervention in the social sphere which has, in many cases, led to criminalisation, resulting in what I have termed 'punitive interventionism'. Punishment has been intensified as the reach of the criminal law has been extended into the social sphere and used to deal with mere problem behaviour. This is a far cry from the 'punitive bifurcation' of the Thatcher era whereby minor criminals were to be treated with more leniency whilst the most serious offenders would receive ever-harsher sentences. Under New Labour, the punitive thrust has pushed in both directions. The aim of this paper will be to briefly outline the key features of this punitive trend before attempting to determine precisely how the neoliberal ideology developed during the Thatcher years has continued to impact on criminal justice policy today. It will be advanced that the main legacy of Thatcherism has been the development of a neoliberal hegemony which has severely limited the scope of government action and its capacity to act independently.
The so-called punitive turn' under New Labour has been discussed at length elsewhere (Tonry, 2003; Pratt et al., 2005; Bell, 2010) but it will be useful here to briefly summarise its main characteristics. Under New Labour, there has been considerable penal expansionism, largely facilitated by the lengthening of prison sentences, the erosion of legal protections, the strict application of alternative sentences, and the creation of an increasing number of imprisonable offences. In addition, the past decade has seen the criminalisation of an ever-wider range of activities, many of which would never have previously fallen under the aegis of the criminal law. This trend has been exacerbated by the rise of out-of-court summary justice, notably via the creation of Penalty Notices for Disorder in 2001 which allow official police officers, police community support officers or even neighbourhood wardens to fine individuals (over the age of 15) for any behaviour which they believe capable of causing "harassment, alarm or distress". According to Rod Morgan, the former head of the Youth Justice Board who refers to this trend as "the quiet revolution", the rise in the number of offences brought to justice in recent years can largely be accounted for by the extension of summary justice (Morgan, 2009). Finally, social interventions have increasingly been backed up by criminal sanctions such as parenting orders under which parents of young delinquents are obliged to attend counselling or guidance sessions - failure to attend can lead to prosecution.
These tough policies have most probably been encouraged by the fact that successive New Labour governments' attempts to tackle the social causes of crime in a neoliberal context were doomed to failure from the very beginning. Penal toughness has enabled the government to be seen to be doing something about both crime and social problems whilst diverting attention away from the role that its policy may have played in creating them in the first place. However, we must be wary of the degree of voluntarism we impute to government here. I do not wish to suggest that government policy-makers actively sought to govern through crime', using criminal justice policy as a diversionary strategy, even if it may indeed have served such a function. On the contrary, I seek to argue here that the real impact of neoliberalism has actually been a severe restriction on the degree of voluntarism that can be exercised by government. The most lasting inheritance of Thatcherism has been the gradual spread of neoliberal ideology to all spheres of government policy-making to the extent that it has become accepted as an unchallengeable orthodoxy - there is indeed no alternative. As Bob Jessop has suggested, there has been a routinisation of neoliberalism under New Labour which has involved securing the neoliberal project through normal politics and the development of 'flanking mechanisms' to compensate for the negative social, economic and political effects of the project (Jessop 2007). On account of New Labour's failure to challenge its neoliberal inheritance - indeed, in many ways it has actively embraced it - it has found its sphere of action limited to protecting the free economy and responding to the demands of the private sector. Even if it has become more interventionist in the social sphere, its freedom of action here has paradoxically been severely curtailed as social priorities have been made subservient to those of the market. This has also led to increasing punitiveness on account of the fact that the ultimate aim of social intervention has become responsibilisation in order to encourage less dependence on the state. Since such an aim can only be secured using sticks as well as carrots, the criminal law has become an effective tool in the service of neoliberal ideals as the line between the social and the penal has become increasingly blurred. In the sphere of criminal justice itself, the expanding reach of neoliberal ideology has also led to increasing punitiveness as government priorities have been limited to responding to the imperatives of efficiency and competition, and to the interests of the private sector and the 'consumers' of criminal justice.
The new emphasis on efficiency and competition in the criminal justice system has resulted not only in the restructuring of the system itself but also in a move away from the philosophy which guided it throughout most of the 20th Century. Since the early 1990s, the criminal justice system has, like all other public services, been forced to accept the transposition of management principles from the private sector and to open itself up to competition. The trend began in 1993 when the Prison Service became a 'Next Steps Agency' of government, meaning that the service, headed by a director general chosen by open competition, would look after its day-to-day operation, whilst the government would remain responsible for policy. Derek Lewis, previously Chief Executive and Chairman of the Board of Management of Grenada Group Plc., was appointed to head the new service. The fact that he had no previous experience of the criminal justice system was considered irrelevant - he had presumably been specifically chosen to apply his management skills acquired in the private sector directly to the Prison Service. Such management techniques were indeed introduced, such as Key Performance Indicators (KPIs) to monitor performance (such as regime improvements, escapes) and financial efficiency.
This new trend, involving the application of private-sector management techniques to the criminal justice system, was described as "the new penology" by the American criminologists Feeley and Simon as early as 1992. They suggested that the new penology focused on offender management rather than on rehabilitation and judged the efficacy of the system on actuarial rather than on subjective outcomes. Indeed, the criminal justice system is now judged not just on its capacity to prevent crime or to reform the criminal but also on its financial efficiency. As the Ministry of Justice has declared, "A fair and effective criminal justice system must provide collective benefit: justice for victims and local communities, punishment and reform for offenders and value for the taxpayer" (Ministry of Justice, 2008). It would perhaps be going too far to suggest that the reform of the offender has been abandoned as a key aim of criminal justice: the reduction of recidivism rates is often cited as a KPI (Key Performance Indicator) for criminal justice services and the government does continue to invest considerable amounts of money in rehabilitation programmes. Yet there is a danger that the welfare imperative which has traditionally been associated with the need to reform the offender has been overshadowed by concerns of profitability, resulting in what Cavadino and Dignan have described as "punitive managerialism" (2006). An examination of the structural changes which have taken place across the criminal justice system since New Labour came to power will help determine to what extent this has proved to be a reality.
The principle means of achieving the declared objectives of the Ministry of Justice is, it claims, through competition which it regards as "driving efficiency and innovation within public services" (Ministry of Justice, 2009). Increased competition was introduced into the Prison Service when it was merged with the Probation Service to create a single executive agency known as the National Offender Management Service (NOMS) in 2004. Based on the recommendations of Lord Carter (Carter, 2003), founder of Westminster Healthcare, NOMS aims to "commission" what it calls offender services to the organisations that it considers "best placed to deliver" them with the aim of improving efficiency (NOMS, 2009). In practice, this means that the public sector has been opened up to contestability - it now has to compete with the private and the voluntary sectors for government funding to run key criminal justice services. The private sector had already been playing a significant role in the prison service since the enactment of the Criminal Justice Act 1991 which enabled the government to contract out the management of prisons. Under the Major government, two prisons were built by the public sector and then managed by the private sector (HMP Wolds and HMP Doncaster). All the others - there are now 11 in total in the UK (out of 140) - were financed, designed, built and managed by the private sector under PFI contracts. They accommodate approximately 10% of all prisoners in the UK. The current government has recently announced that the management of five existing prisons (two of which are already in the private sector) is to be put out to competitive tender (Ministry of Justice, 2009a). It has also announced that five new prisons to accommodate 1,500 prisoners each are to be built under PFI contracts (Ministry of Justice 2009b). Only seven major consortia have been invited to bid for the contract (G4S, the GEO Group, Kalyx, Mitie, Reliance, Serco and Wates Construction) (Ministry of Justice 2009b).
The private sector is also involved in running training workshops for inmates in certain publicly-run prisons. For example, a data cabling workshop has been set up at HMP Wandsworth, run by Cisco, Panduit and Bovis Lend Lease. These employers often provide job opportunities for inmates on their release. Training prisoners up for the workplace is of course to be welcomed, especially given that half of all prisoners do not have the skills necessary for 96% of all jobs (House of Commons, 2005). However, there is a danger that rehabilitation programmes will be tailored to meet the needs of the private sector rather than those of individual offenders who may end up leaving prison with the skills necessary to find employment but still affected by a whole host of other problems, emotional, psychological or otherwise, which will in any case make it difficult for them to survive in the workplace. However, the main problem lies with the involvement of the private sector in the running of prisons.
Despite claims made by the Ministry of Justice that competition "has led to service improvement across the board" (Ministry of Justice, 2009a), there is a significant amount of evidence to suggest that the "pains of imprisonment" (Sykes, 1958) are exacerbated in privately-run prisons. Even the Ministry of Justice's own figures show that the overall score obtained by private prisons in England and Wales was 10% lower than that of public sector prisons (Ministry of Justice, 2009). There are of course many public-sector prisons which often come under the criticism of the Prisons Inspectorate but there are specific reasons why conditions are likely to be worse in private-sector prisons. For example, there is evidence that prison officers have been encouraged by privately-managed prisons not to report incidents which might break the terms of their contract with the Prison Service so as to avoid incurring financial penalties. Private companies also pay their staff considerably less than those who work in the public sector (Centre for Public Services, 2002). Consequently, their staff are often young and inexperienced, which may of course affect the quality of care they provide to prisoners.
Setting these concerns about private prisons aside, the Ministry of Justice claims that "public prisons have improved in the face of competition" (Ministry of Justice, 2009a). Yet it is of course rather difficult to pinpoint the precise reasons for any improvements in prison regime. Indeed, many major improvements were made before competition became a major issue for the Prison Service, in the wake of the Woolf Report from 1991 (the ending of slopping out, for example). The Human Rights Act has also helped to ensure that conditions do not fall below such a standard that they cause the prison service to breach the law. In any case, it is questionable to what extent conditions in public prisons have actually improved in recent years. Indeed, the growing problem of overcrowding has made it extremely difficult for prison authorities to provide positive' prison regimes.
The Probation Service has also been restructured in recent years in a drive for increased efficiency, leading to an erosion of the welfare role of probation officers. The Offender Management Act 2007 opened up the Probation Service to contestability but changes had already been underway since 1991 which were to lead to a profound change in the philosophy which had guided the service since it was founded in 1907. The 1991 Criminal Justice Act redefined the role of the probation officer from one in which he was to advise, assist and befriend offenders and ex-offenders to one which was to prioritise crime reduction, public protection, rehabilitation and "punishment in the community". In 2000, the boundaries between social assistance and punishment were further blurred when probation officers were required to work with the police in order to develop Multi-Agency Public Protection Arrangements to manage dangerous offenders outside prison and to keep their victims informed of key developments concerning their supervision in the community. Probation officers have also lost their powers of discretion over whether or not to inform the court when offenders breach the conditions of community sentences (now known as Community Payback). The distinction between social assistance and punishment was finally removed altogether when the prison and probation services were brought together under NOMS in 2004. The government's aim was clear. As Paul Boateng declared when he was a minister at the Home Office, "We are moving away from a social work type of befriending model, no one should be under illusions about this [...] we intend to form the national probation service on law enforcement" (cited in Pratt et al., 2005). Law enforcement and financial efficiency, it would appear. The Ministry of Justice has announced that certain probation boards will become trusts, empowered to deliver key criminal justice services (Ministry of Justice, 2009). The requisite qualities are defined as the capacity of boards to show local engagement, strong leadership and to demonstrate effective resource use, meaning "value for money... economy, efficiency and effectiveness" (Ministry of Justice, 2009). Boards who do not demonstrate these qualities will have their services competed for on the open market. Although reform and rehabilitation remain a key aim of the Probation Service, it would seem that cost considerations have become paramount whilst those of welfare have been sidelined. Just as in the prison service, the primacy of management philosophy is likely to lead to the harsher treatment of offenders.
The government has claimed that the reform of prison and probation services and indeed of the criminal justice system as a whole has been informed by the need to respond to public demands. As we mentioned above, the government claims to be concerned with providing the public with value for money. It has also repeatedly expressed the desire to render the criminal justice system more victim-centered. Consequently, victims are increasingly involved in the criminal justice process. At the policy-making stage, a new Victims Advisory Panel was set up in 2006 to enable victims of crime to make formal recommendations to ministers concerning changes to the criminal justice system. In January of this year, Sara Payne, mother of eight year-old Sarah Payne who was murdered in 2000 by a convicted sex offender, was appointed as the first official 'Victims' Champion'. Last month, the Ministry of Justice published a policy report written by Ms Payne after she spent nine-months examining the current system and speaking to victims and the organisations which support them (Payne, 2009). Victims can also make their voices heard in court via Victim Impact Statements which provide a written account of the physical, emotional, psychological and financial consequences of an offence on its victim.
This desire to respond to victims' needs can be explained in part by the decline of deference to government authorities and the increasing involvement of the public in political debate, pushing the government to be more responsive to public demands. Yet it might also be argued that it is driven by the new management philosophy according to which public services should become more consumer than producer-led. However, it would appear that victims are not the only interested parties driving policy reform. Indeed, it is debatable to what extent these reforms actually meet their needs. For example, victims of corporate crime are largely ignored despite the fact that they are most probably more numerous than victims of violent crime. Although they do not appear in official crime statistics, research has shown that investors, consumers and workers are all widely affected by corporate crime. For example, it is estimated that accidents at work and work-related illnesses cause more deaths per year in Britain than murder (Tombs and Whyte, 2008). In addition, the obsession with cost reduction in the criminal justice system is likely to make it more difficult for service providers to effectively protect the public from non-corporate violent crime. For example, just last summer, the head of the London Probation Service, David Scott, claimed that the chronic lack of resources provided to his service had been a factor leading to the mismanagement of an ex-offender who was convicted of killing two French students whilst under the supervision of the probation services (Scott, 2009). It is also doubtful whether the drive for financial efficiency across the criminal justice system has actually provided the public with value for money. For example, contrary to government claims, research has shown that projects financed under PFI contracts are often more costly for the government in the long-term than projects financed directly by the public sector: there are extremely high consultation costs linked with such contacts (Centre for Public Services, 2002, p. 30); the State is still obliged to assume much of the risk whilst the private sector collects the profits (Harvey, 2007, p. 77); government may be left to pay for services long after they have ceased to be useful; and it may be obliged to pay a premium to a private company to ensure that the contract is completed on time without exceeding its budget.
It would consequently appear that government concern for victims is motivated more by electoralist populism than anything else. Interest groups other than the public and victims of crime evidently hold more influence over government policy-making. Indeed, the notion of evidence-based policy-making is rather narrowly defined to predominantly include evidence which is produced by interested parties, namely by the private sector. For example, a report produced by the Department for Trade and Industry, since renamed the Department for Business, Innovation and Skills, on the use of market-based approaches to public policy, relied almost exclusively on evidence produced by representatives from the private sector when vaunting the cost-efficiency of competitive tendering in the prison service (DTI, 2005). Its overall conclusion was that "procurement of prison services has been successful". It based its claims on cost efficiency exclusively on a CBI report on the effects of competition in the prison service (CBI, 2003). This latter report was written by Gary Sturgess, executive director of Serco, which manages four contracted-out prisons in the UK. Unsurprisingly, the UK's experience of the contracting-out of prisons was described as "overwhelmingly positive" (CBI, 2003, p. 47). The DTI failed to adopt a critical approach to the CBI report, ignoring evidence to the contrary. Even though it also claimed to draw on a National Audit Office report, the concerns raised by this report, notably that private prisons do less to reduce recidivism than those in the public sector (National Audit Office, 2003, p. 19), were overlooked. Nevertheless, the Ministry of Justice cites the DTI Report as evidence of the cost savings provided by the competitive tendering of prisons (Ministry of Justice, 2009a).
That government is influenced by the private sector when formulating policy is also evidenced by the fact that the business lobby has been welcomed as a key partner in the fight against crime. At a local level, members of Crime and Disorder Reduction Partnerships are empowered to consult local businesses when developing their anti-crime strategies, and the creation of Business Improvement Districts has enabled local businesses to work with local authorities in order to create the conditions favourable to commerce. In some cases, control of entire areas in city centres has been handed over to private business. In practice, this has meant business proscribing certain behaviour that is considered to be detrimental to profit and using private security guards to enforce their rules. These developments essentially involve businesses playing a significant role in the definition of what may and may not be considered to be criminal and/or disorderly behaviour. Private business appears to be less interested in excluding criminals than in excluding those who are unlikely to consume. Once control of public space is handed over to private business in this way, government effectively loses control of policy as it become increasingly difficult for it to challenge established interests.
At a national level, senior figures from the private sector are regularly drafted in to help government formulate policy. We have already mentioned Lord Carter - he has been responsible for carrying out a number of policy reviews on issues related to criminal justice, notably on prisons (Carter, 2007), legal aid procurement (Carter, 2006) and the management of offenders (Carter, 2003), all of which have advocated market solutions. In addition, many government policy advisers on penal policy and reform have links to the private security industry. For example, Malcolm Stevens, manager of G4S Secure Training Centres (STCs) for 12 to 17 year-olds, used to be a government adviser on STC contracting (Corporate Watch, 2000). The first director of Medway STC, Sue Clifton, was an adviser to the Youth Justice Board (Corporate Watch, 2000). Consultation also works in the other direction: Labour peer, Lord Filkin, is employed as a consultant for Serco (Serco, 2009). Lobby groups also undoubtedly exert considerable influence on government. The CBI, for example, as the largest lobby group for the private sector in the UK, enjoys a privileged position in the policy-making process, frequently contributing to government consultation exercises and networking within Parliament. The private security industry is particularly well-represented by the CBI: key members of the Public Services Strategy Board, set up specifically to campaign for an increased role for the private sector in the delivery of public services, include representatives from G4S (David Banks, Managing Director of the Group's Care and Justice Services), Serco (Clive Barton, Marketing Director for the Serco Group and Gary Sturgess from the Serco Institute, the Group's research facility) and the construction companies who have been chosen by government under the NOMS Strategic Alliance Framework Agreement to build penal facilities and to carry out minor refurbishment works on publicly-run prisons (John McDonough, Chief Executive of Carillion and Adrian Ringrose, Chief Executive of Interserve).
The private sector has now become the principal policy-making partner of government. Independent academic experts are rarely consulted and, when they are, it is questionable the extent to which their advice is actually taken into consideration. Just last month, Professor David Nutt, chairman of the Advisory Council on the Misuse of Drugs was dismissed by Alan Johnson after he publicly claimed that alcohol was more harmful than many illegal drugs such as LSD, Ecstasy and cannabis and accused the government of distorting and devaluing the research evidence on the matter. Despite government claims to favour what it describes as 'evidence-based policy-making' and considerable investment in research in the field of crime policy, in practice the New Labour administration has been very selective concerning the results it chooses to publish and use in policy formulation (Hope, 2004). The trend has been exacerbated by the transposition of efficiency imperatives into the field of research: academic experts increasingly find that they are discouraged from undertaking work which seeks to analyse broad fundamental questions with regard to penal policy since it clashes with a performance target culture which favours short-term solutions (Maguire, 2004). In addition, the penal reform lobby has come to exercise less and less influence over policy-making (Ryan, 2008). Today, the experts' in the field of criminal justice are more likely to come from the private sector than the public. The potential for conflict of interests is of course great.
As the influence of the private sector has become stronger, the state has become weaker, even if it has become more authoritarian. But this is about more than simple authoritarianism. Authoritarianism emanates from the state. Neoliberal ideology has infected the policy-making process to such an extent that government is now obliged to bend to the interests of the private sector whether it actively chooses to do so or not. It is largely out of populism that it attempts to respond to the interests of the victims of crime. Although the primacy accorded to the interests of private business may be presented as an inheritance from Thatcherism, it is only under New Labour, as neoliberalism has become truly routinised, that it has become so prominent.
In the present political context, it would seem that the trend is irreversible. Indeed, should David Cameron become the next Prime Minister, there is every indication that the private sector will remain a key partner in the policy-making process and that its imperatives will continue to drive policy, especially in light of Conservative Party promises to render the public sector more efficient. Punitive interventionism is also likely to remain. Although 'caring conservatism' dictates that the Party pay more attention to social problems, attention is still focused on reinforcing personal responsibility, through coercion if necessary. In addition, in spite of the Party's professed concerns about the erosion of civil liberties in modern Britain, it is unlikely that these will be better protected under a Conservative government. On the contrary, the Party has already promised to extend police powers and there is little chance that a Conservative government would interfere with the interests of the private security industry which is profiting to such a huge extent from the increased surveillance of British citizens. Perhaps it could now be suggested that the neoliberal hegemony, initially set in train under Thatcher, is now complete.
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Young, Peter (1987), The Prison Cell: The Start of a Better Approach to Prison Management, London, Adam Smith Institute. Available at: http://www.adamsmith.org/images/ uploads/publications/prisoncell.pdf [consulted on 16th November 2009].
Pour citer ces ressources :
Emma Bell. 03/2010. "The Intensification of Punishment from Thatcher to Blair: From conservative authoritarianism to punitive interventionism".
La Clé des Langues (Lyon: ENS LYON/DGESCO). ISSN 2107-7029. Mis à jour le 30 avril 2010.
Consulté le 25 février 2017.
Url : http://cle.ens-lyon.fr/conferences/the-intensification-of-punishment-from-thatcher-to-blair-from-conservative-authoritarianism-to-punitive-interventionism-90656.kjsp