In crisis an opportunity to reform criminal justice?

Richard Garside
Wednesday, 10 March 2010

Whatever the result of the next general election, a major drive to contain, indeed reduce, public spending is likely to be a key feature of the coming decade. We face the prospect of two parliaments of pain. But with crisis can come opportunity, a point made by President Obama’s chief of staff, Rahm Emanuel, at a Wall Street Journal conference in late 2008. This is what he told his audience:

'You never want a serious crisis to go to waste. Things that we had postponed for too long, that were long-term, are now immediate and must be dealt with. This crisis provides the opportunity for us to do things that you could not do before.'

So what are the prospects for a rethink on the way the criminal justice system operates? Does the crisis present an opportunity to scale it back: fewer prisons, fewer police, a smaller criminal justice system?

It is certainly true that expenditure on criminal justice has grown dramatically in recent years. Using the ‘public order and safety’ categorisation from the United Nations Classification of the Functions of Government framework we find that, in real terms, spending doubled over the last twenty years. It stood at £15.6 billion in 1987-88, rising to £21.1 billion in 1996-97 and £31.4 billion in 2007-08.

Overall public spending also grew during this period. However growth in spending on public order and safety outstripped average growth in total public spending. Broadly speaking, above average growth in public spending signifies that a particular policy area is a government priority. The above average growth in spending on public order and safety is therefore a confirmation, in financial terms, of the regular claim that law and order has become an increasingly salient political issue in recent years.

So what would be the effect of, say, taking a radical approach to law and order expenditure; reducing it, in real terms, to the levels of expenditure in the late 1980s? In 2007-08 the £31.4 billion of spending on public order and safety represented 5.6 percent of total public expenditure, some £555.3 billion. So to halve current law and order expenditure to bring it in line with expenditure in the late 1980s would only have a small effect on overall public spending. Even radical cuts to criminal justice budgets would have little impact on underlying levels of public spending, and no political party is talking about cuts of this scale. In short, there is not a compelling economic case to be made for cutting public order and safety expenditure as a means of repairing the nation’s finances.

This does not mean that public order and safety expenditure could or should not be cut. Spreading the burden of any cuts across a number of government departments would help to share the pain and prevent any one area from taking a disproportionate hit. That said, I think that there are reasons for thinking that significant cuts to public order and safety expenditure are unlikely, regardless of the overall pressures on the public finances. To understand why this may be the case we need to think about the role of criminal justice and its relationship to underlying economic and political processes. I want to do this through a famous comment made by Karl Marx in his Preface to A Contribution to a Critique of Political Economy:

'In the social production of their existence, men (sic) inevitably enter into definite relations, which are independent of their will, namely relations of production appropriate to a given stage in the development of their material forces of production. The totality of these relations of production constitutes the economic structure of society, the real foundation, on which arises a legal and political superstructure and to which correspond definite forms of social consciousness.'

I highlight this quote from Marx not because I want to argue for a ‘marxist’ approach to this question, though Marx does have a lot to offer anyone who wants to think seriously about politics, economics and the way society is organised. The point here is to tease out the relationship between economic processes and the criminal justice system. The implications of Marx’s observation is that the prevailing processes of criminal justice – the ‘legal superstructure’ in Marx’s language – are deeply related to underlying economic processes. Indeed, the latter are the ‘foundation’ on which the criminal justice system, among other institutions, is built.

This does not mean we can simply ‘read off’ criminal justice arrangements from the economy. After all, foundations strongly influence the shape, size and configuration of a structure. They don’t rigidly determine them. But the implications of Marx’s proposition is that the nature of reformist agendas – such as scaling back the criminal justice system and/or reducing its budgets – will be significantly influenced by the underlying political and economic relationships of any given society. The opportunities for reform, the scope for radical action, will be constrained by limits set by these underlying relationships.

To explore this point further I want to quote from a recent book by Loïc Wacquant, Punishing the Poor, in which he examines the causes of the expansion of the US prison population over recent years. Here is what he says:

'The sudden expansion… of the penal state is… a ruling-class response aiming… to establish a new economic regime based on capital hypermobility and labor flexibility and to curb the social turmoil generated at the foot of the urban order by public policies of market deregulation and social welfare retrenchment that are core building blocks of neoliberalism.'

Overall, Punishing the Poor is a rather disappointing book. I quote Wacquant’s comment here because he poses, in a particularly sharp way, much that passes for relatively orthodox criminological reflection on prison and its role. In particular: that prison serves an important social function of regulating ‘problematic’ populations and individuals; that the size and shape of the prison population has little to do with underlying levels of crime. Developing this analysis Wacquant argues that the expansion of the US prison system – and by extension that of a number of other advanced capitalist countries – has little or nothing to do with crime rates and a lot to do with the emergence of neoliberal modes of governance and organisation.

I don’t have time here to explore what neoliberalism means. Those who are keen to learn more could do a lot worse than read David Harvey’s A Brief History of Neoliberalism, a lovely book that has the distinct advantages of being both short and very accessible. The point to draw out here is that, if we are to pursue strategies to reduce the scope and scale of the criminal justice system, we need to understand what has driven its expansion in recent years. The implications of Wacquant’s observation is that we need to look to the deep structures of the economy, not the flim flammery of party political manoeuvrings, or tabloid-inspired populism, for the explanation of this expansion.

If this is the case, I think we have reasons for thinking that government is unlikely to seize the opportunity of the crisis to cut criminal justice spending or scale back criminal justice. For sure they will seek to do more with less; work staff harder; make strategic cuts in areas – such as legal aid or criminal injuries compensation – that are easy targets. But in an age of neoliberalism, with all the social turmoil and disruptions this implies, the British and other governments will need a strong and expansive criminal justice system more than ever.