The politics of criminal justice under Labour

Richard Garside
Wednesday, 25 October 2006

I would like to start by thanking Ian for the invitation to present a paper to you today. It is an honour to be asked to speak and a pleasure to be here.

My paper draws partly on the arguments first set out in a pamphlet I wrote for the Crime and Society Foundation and published in July of this year (Garside 2006 - Right for the wrong reasons was republished in October 2006 along with a number of responses to the original pamphlet, in an edited version 'Does criminal justice work'. All references in this paper are to the latter volume). Called Right for the wrong reasons, it examined the seeming paradox of an apparently failing criminal justice system at a time of supposedly falling crime levels. In the pamphlet I argued that New Labour had come to the correct conclusion about criminal justice failure, but had done so through faulty reasoning. They were, in other words, right for the wrong reasons. The implications of the government's false understanding of criminal justice failure were significant, the pamphlet argued, not least of all because it had helped to justify a set of policies that were mostly dubious and counterproductive, when they were not merely irrelevant. A correct understanding of criminal justice failure would imply a very different set of policies, the pamphlet concluded.

In the first part of this paper I reprise the main lines of the argument first set out in Right for the wrong reasons. I thought, however, that it would be rather tedious simply to rehash what is freely available to read on the Crime and Society Foundation's website. Moreover, there are in my view important questions about Labour's criminal justice policies left unaddressed or underdeveloped by Right for the wrong reasons. Chief among these - and one that goes to the heart of the politics of crime and criminal justice under Labour - is the question of the relationship between the government's argument about criminal justice failure and the direction taken by criminal justice and related policy areas under Labour since 1997. I will address this question in the second part of my paper.

I should enter a caveat at this point. `Right for the wrong reasons' was conceived of as an intervention into an important area of public policy debate, not as a contribution to academic criminology. My own criminal justice background is in public policy and public affairs, first at Nacro and subsequently at the Crime and Society Foundation and the Centre for Crime and Justice Studies. Bringing good academic thinking on crime and criminal justice into the public policy domain is a key priority for us. In this context a number of the themes and perspectives developed by academic criminologists and those in related disciplines are important in shedding light on certain political questions raised by Labour's current criminal justice-related policies.

One of these questions relates to the way in which Labour has presented criminal justice as the answer to crime and related social problems. This strikes me as in need of sustained and detailed critique. Related to this is the effect the dominant policy focus on criminal justice has had on closing down discussion about the political-economic foundations of safe and unsafe societies. The problem of crime then becomes detached from historical and sociological reflection on the kind of society we live in, and how it came to be the way it is. The solutions to crime become managerial and technocratic in nature. Indeed, the very politicisation of crime and criminal justice in recent years has tended towards depoliticising questions relating to the way that we organise society and the degree to which this determines levels of safety and unsafety. In a modest way, `Right for the wrong reasons' was an attempt to reopen and repoliticise the debate on these questions.

Part one: Labour's position on criminal justice failure
To get a flavour of Labour's position on criminal justice failure, let me start by quoting from two recent speeches given by the Prime Minister. The first is from a speech given by Mr Blair in Bristol on June 23rd this year. It is a speech that will probably be familiar to this audience, not least of all because it catapulted your colleague Ian Loader into the public eye when he rather publicly stuck the boot into the Prime Minister. If Andy Warhol's fifteen minutes of fame maxim is true, Ian more than got his lifetime's quota in the latter half of June.

The problem of criminal justice, in the words of the Prime Minister, is as follows:

  • As the 20th Century opened the number of crimes recorded by the police in England and Wales per head of population was at its lowest since the first statistics were published in 1857.
  • By 1997 the number of crimes recorded by the police was 57 times greater than in 1900. Even allowing for population growth it was 29 times higher. Theft had risen from 2 offences per 1,000 people in 1901 to 55.7 in 1992.
  • Over the past 50 years, the detection rate almost halved. 47% of all crimes were detected in 1951 but only 26% in 2004/5. Conviction rates fell too, to 74% in 2004/5 from 96% in 1951...
  • The challenges faced by the criminal justice... system... have grown exponentially, not in a small way but in a way that, frankly, mocks a system built not for another decade but another age. So we end up fighting 21st century problems with 19th century solutions. (Blair 2006a: 87-88, 90).

The second quote is from Mr Blair's final speech to the Labour Party annual conference as leader, delivered in September. There was a `fundamental dilemma', he said, in reconciling `liberty with security' in the world in which we now live. He continued as follows:

  • I don't want to live in a police state, or a Big Brother society or put any of our essential freedoms in jeopardy. But because our idea of liberty is not keeping pace with change in reality, those freedoms are in jeopardy.
  • When crimes go unpunished, that is a breach of the victim's liberty and human rights.' (Blair 2006b).

The first quote uses an argument from history to describe the challenge faced by today's criminal justice system. The figures Mr Blair uses to make this argument - drawn from police recorded incident data and statistics relating to court processes - are, needless to say, used in a highly contentious manner. He assumes that they offer a window onto the world of crime, and the seriousness with which society deals with it. In truth they merely provide a rather partial insight into certain criminal justice processes. But no matter. My interest here lies more with Mr Blair's presentation of the problem of criminal justice than with the figures he uses to illustrate it. In a nutshell, the criminal justice system has failed to adapt to the modern world and rising crime levels. In the favoured phrase of the moment, the criminal justice system is no longer `fit for purpose'. What is needed is a complete overhaul of the system, `a modern CJS fighting the modern reality of crime', in the words of the Prime Minister (Blair 2006a: 96).

The second quote describes certain features of a reformed criminal justice system. It will require a rethink of the notion of freedom and liberty. And it will require an unceasing drive to punish. But criminal justice here also takes on a much more significant role than merely being a set of technical arrangements for dealing with certain breaches of the prevailing laws of the land. For crime is a denial of the freedom and liberty of the victim. A commitment to the freedom and liberty of victims requires a commitment to punishment. Indeed, more than that, the current failings of criminal justice means that the freedoms of all of us are in jeopardy. A properly functioning criminal justice system thus becomes no less than a guarantor of a free and democratic society.

Now Tony Blair is the most powerful member of the current government. He has also been the single most influential voice on crime and criminal justice in the United Kingdom for over a decade. But we should avoid simply equating his view, or indeed that of his speechwriters, with the view of government, especially when that view is presented in the context of political speeches. That said, during its period in office Labour has developed a distinctive critique of criminal justice, a critique reflected in the Prime Minister's comments. The core argument was set out very clearly in the 2001 publication, Criminal Justice: The Way Ahead (Home Office 2001).

The basic problem, according to Criminal Justice: The Way Ahead, is that crime rates took a sharp upward turn from the early 1980s, while the criminal justice system treaded water. During these years, the criminal justice system had `not kept pace with the growth in crime nor with new types of crime and criminality'. This lack of performance itself contributed to the development of a vicious circle. There were `many reasons' for the growth in crime, but `one important underlying factor' was the fact that the criminal justice system had `not been effective enough in dealing with crime or offenders' (Home Office 2001:18). Far from simply being a matter of bureaucratic dysfunction, criminal justice failure was itself a major cause of crime. This in turn contributed to public cynicism and declining confidence that criminal justice was up to the job and to a disproportionate fear of crime.

The policy implications that flow from this critique are straightforward, at least in their general articulation. The criminal justice system `must keep pace' with changes in crime and criminality. This `is the broader challenge of modernisation'. Appropriately modernised, the criminal justice system will be `able to keep pace with changing patterns of crime... so that it can drive down crime' (Home Office 2001: 20). In practice this has resulted in an expansion of the reach and a strengthening of the grip of the various criminal justice agencies: `net widening' and `mesh-thinning', to use Stan Cohen's phrase.

The visceral appeal of the critique set out in Criminal Justice: The Way Ahead is one of its strengths. It chimes with a Middle England mindset that assumes that the country is losing the war against crime, with hardened criminals and their clever lawyers running rings round the police and prosecution. So the Prime Minister could observe in 2004 that `it is also a miscarriage of justice when the guilty walk away unpunished, as it is when the innocent are convicted' (OCJR 2004: 6). That such an attempt to subvert the liberal notion of the miscarriage of justice has genuine purchase, rather than merely being dismissed as spurious and dangerous, is a sign of the changed ideological climate in which debates about law and order are now taking place.

But the critique in Criminal Justice: The Way Ahead also chimes with a commonsense view of criminal justice as being on the frontline in crime reduction. For if criminal justice `exists to fight and reduce crime and to deliver fair, efficient and effective justice', in the words of the 2002 White Paper, Justice for All, (Home Office 2002: 26), then modernising it to keep up with shifting crime rates and crime patterns is a natural corollary.

For these reasons among others the government's critique has proved remarkably influential, legitimising the trajectory of criminal justice policy ever since. Thus successive Home Secretaries have pursued much the same policies as their predecessors, regardless of talk of fresh starts and new beginnings on their appointment. The intellectual ballast it has lent to the `anti-social behaviour' and `Respect' agendas is also telling. Without it, the government's rather quaint fixation with policing petty irritations and minor disorder, rather than engaging seriously with their underlying causes, would be rather more apparent.

But influential or not, the critique is deeply flawed. To understand why, I start by examining the basis of the argument set out in Criminal Justice: The Way Ahead.

According to that document `the ability of the CJS to detect and sanction offenders has not kept pace with the marked increase in recorded crime'. Until the late 1970s, `recorded crime, clear-ups, indictable prosecutions and convictions... tracked each other closely' (Home Office 2001: 114). From then on, a gap opened up. In 1980, it notes, around six offences were recorded by the police for every individual successfully convicted. By 1999-2000 the police recorded around eleven offences for every successful conviction. Over a 20-year period the conviction rate apparently declined quite significantly, from 18 percent in 1980 to nine percent 20 years later.

The problem of Criminal Justice: The Way Ahead is therefore a species of the oft-observed feature of the criminal justice system known as `attrition'. But by using the police recorded incident data as the starting point of its analysis what exactly has the government proved? Police data is a product of the criminal justice process, not something external to it. It details alleged and suspected crime incidents catalogued by the police. It does not offer a measure of crime independent of the criminal justice process. It is also a notoriously partial measure of suspected crime incidents, failing to quantify the so-called `dark figure' of unknown crime.

Comparing the police data with the number of successful convictions offers some potentially interesting insights into certain criminal justice processes, though without further analysis of the intervening steps between a crime being recorded and a guilty verdict being delivered, and of the broader context within which the police and courts operate, firm conclusions are difficult to draw.

For instance, the police recorded roughly twice as much crime in the late 1990s as in the early 1980s. The kinds of crimes the police tend to record may objectively have risen during this period. The British Crime Survey trend data tends to reinforce such a conclusion. But changes in the way the police record crime, or of policing priorities, may also have had an impact. The numbers prosecuted in the courts fell between the early 1980s and the late 1990s, as did the number of convictions. This might indicate a decline in the capacity of the criminal justice system to deal effectively with suspected offenders. But then again, we are talking about suspected offenders here. Perhaps the courts became better at acquitting the innocent and only convicting the guilty. Or perhaps prosecution decisions improved during the 1980s and 1990s, with fewer innocent people having to defend themselves in court. After all, one of the reasons for establishing the Crown Prosecution Service in the mid-1980s was to improve decision-making over who should be prosecuted.

The broader political context within which both the police and courts operated during the 1980s and 1990s - the significant social and economic upheavals of the Thatcher period for instance; the politicisation of the police in the context of strikes and other political agitations - also needs to be taken into account. What a crude comparison between police and conviction data does not offer is any meaningful information on whether the criminal justice system regressed in its capacity to deal with crime during this period.

A better starting point for exploring the question of criminal justice performance, and the degree to which it might have declined, is the British Crime Survey. Its data is collected independently of the criminal justice process. It also picks up on a number of offences the police do not record.

In 1981, the first year for which British Crime Survey data is available, around one individual was successfully convicted for every 25 offences estimated by the British Crime Survey. By 2000 around one individual was convicted for every 30 offences estimated by the British Crime Survey, as was the case in 2003/04. According to this data, the gap that supposedly opened up during the 1980s and 1990s largely disappears. Expressed differently, a significant gap was the norm throughout that period. Criminal justice was about as ineffective at successfully resolving suspected offences in 1981 as it was nearly 20 years later, and as it is now.

Ironically, the government's analysis of criminal justice failure appears to understate, rather than exaggerate, the scale of criminal justice failure; a scale of failure ministers do apparently acknowledge in more candid moments. During a speech given to launch, of all things, Criminal Justice: The Way Ahead, the Prime Minister observed that the government's social programmes amounted to a `crime-fighting strategy for tackling the 97 per cent of crime that never gets to the courts' (Blair 2001). That Mr Blair saw no tension between this statement and the analysis set out in the document he was launching says much about the ability of policy-makers to evade the implications of their own positions.

But if the point is to argue for a radical enhancement of the criminal justice system, there are obvious advantages in evading the blindingly obvious. Measured against suspected offences recorded by the police, the conviction rate is poor. But one conviction for every ten suspected offences is not disastrous. Closing the gap appears a reasonable proposition, holding out the promise of reduced crime levels should it be achieved. The rationale for closing the gap largely evaporates when the British Crime Survey becomes the starting point. The sheer scale of the problem makes closing it a far greater challenge. It would also be rather beside the point, given that the vast majority of crime would still not result in a successful conviction even were criminal justice performance to be enhanced.

Of course the British Crime Survey, though an improvement in many ways on police incident data, only measures a portion of all crime, as the recent Statistics Commission report on crime statistics reaffirmed (Statistics Commission 2006). When other data sets are taken into account, the scale of the gap between known or estimated crime and the criminal justice process becomes clear.

A Home Office study of the economic and social costs of crime, published in 2000, estimated that there were around 60 million crime incidents in the twelve months to April 2000 (Brand and Price 2000). This study only looked at a relatively narrow range of interpersonal and property crime-related offences. It did not attempt to quantify all crime. Nonetheless the 60 million figure is more than five times the BCS estimate for the same period and implies a much wider gap between crime levels and successful convictions. Factor in other surveys - the Crime and Justice survey, for instance, which looks at crimes committed by and against young people - and the gap widens further. Take into account the significant levels of serious offences such as sexual violence and child abuse - both dramatically underestimated in official crime statistics - and the gap keeps growing. Consider the possible scale of white collar and corporate crime, as well as crimes committed against businesses, and one has to start wondering whether anything but a minuscule portion of crime ever results in a successful conviction.

In short, it is hardly an exaggeration to state that the vast majority of crime, serious and petty, against individuals and against property, never comes to the attention of the criminal justice agencies and never results in a formal conviction or equivalent criminal justice sanction. Moreover, it is difficult to see what possible impact a criminal justice system, however effective and efficient, could have on the mountain of crime and related harms that daily blights the lives of millions of our fellow citizens.

There is nothing new in these observations, at least not within criminology. As Louk Hulsman observed twenty years ago, `actual criminalisation of criminalisable events... is a very rare event indeed... Non-criminalisation is the rule, criminalisation the rare exception.' (Hulsman 1986: 70). More recently, Paddy Hillyard and others have argued for a much more expansive understanding of what negatively affects people. It is harm, not crime, that should be the proper focus of analysis they argue (Hillyard et al 2004).

The arguments of Hulsman, Hillyard and others are not beyond dispute within criminology. But they are, in general, acknowledged to be valid and important contributions to criminological knowledge and discussion. They are part of the recognised lines of debate. The same can not be said of the public policy arena, which exhibits a profound ignorance of basic criminological perspectives.

This is very obvious in the case of the government's analysis of criminal justice failure. For by misidentifying a well-known feature of the criminal justice process the government has turned an artefact of the criminalisation process into a public policy problem in need of a managerial solution. The implications of this elementary error have been significant, helping to justify a set of expansive criminal justice measures. This in turn has tended to deflect discussion away from any serious consideration of the scale and nature of crime, and the political challenge involved in addressing it.

Part two: Understanding the politics of criminal justice under Labour
In `Right for the wrong reasons' I briefly explored what might be involved were we to be serious about tackling the scale of crime and related harms in this country. I wrote of the importance of tackling the problem of poverty and inequality. I also argued that the task of confronting patriarchy and other unequal power relationships in society could not be evaded.

These are big policy challenges, implying deep and lasting changes to the existing social, economic and political order. As achievable goals they also appear rather distant and unrealistic, utopian even. But it is important to avoid fetishing the present in the name of a simple-minded realism. An openness to the possibility of a future that differs significantly from the here and now is a necessary precondition for any genuine progress to be made.

Yet a lack of openness to other possible futures - both in ideological and concrete policy terms - has very much been a prevailing feature of the Blair governments. In office Labour has pursued a series of criminal justice-related policy initiatives that have been strikingly regressive in impact, and expansive in character. The burgeoning prison population is but the most commented-upon development under Labour. But across criminal justice there are examples of widening reach, enhanced powers and sharpened gaze.

Alongside this has developed a strong hostility towards discussion of the broader socio-economic context within which criminality and victimisation unfold. Where discussion has taken place it has tended to be through the impoverished terms of the social exclusion discourse, a discourse notable for its tendency to locate the problems of participation and engagement in the purported deficits and failings of excluded individuals, rather than in socio-structural problems such as poverty, racism, patriarchy and so on (Levitas 1998; Colley and Hodkinson 2001).

Labour in office have therefore adopted a policy trajectory more associated with the Michael Howard's tenure as Home Secretary under the previous Conservative administration. For a government supposedly committed to a progressive political programme, to have embraced such an overt form of populism is significant and requires some explanation. To do so, I will look briefly at two different ways of explaining the rise of populist criminal justice policies. I will start by considering Anthony Bottoms' concept of `populist punitiveness', first proposed in his important 1995 essay on `The Philosophy and Politics of Punishment and Sentencing' (Bottoms 1995). Second I will consider Stuart Hall's earlier notion of `authoritarian populism', developed in the 1970s to explain the emergence of Thatcherism.

Populist punitiveness is, Bottoms argues, one of four conceptual themes to have influenced the development of sentencing policy in a number of Western countries towards the end of the twentieth century. The other three are the influence of just deserts and human rights discourses; the rise of managerialism and the emergence of `the community' as an organising principle of modern societies.

According to Bottoms, `the term "populist punitiveness" is intended to convey the notion of politicians tapping into, and using for their purposes, what they believe to be the public's generally punitive stance' (Bottoms 1995: 40). Compared with the other three themes he examines, the rhetoric and policies characteristic of populist punitiveness have a `more overtly political dimension' and are `normally adopted in the clear belief that they will be popular with the public' (Bottoms 1995: 39, 40).

Now unless we are to assume that the public are naturally punitive, it is necessary to explain why populist punitiveness itself is popular. Drawing on the work of writers such as Anthony Giddens, Bottoms argues that the underlying reasons for this relate to the `long-term structural socio-economic changes' associated with the rise of modernity in a number of Western countries during the twentieth century. This has included the decline in manufacturing industry; shifting labour market composition; changes in gender relations; radical advances in telecommunications and information technology; a more mobile population (both in social and spatial terms), and so on. As well as resulting in increased crime levels, these changes `have... led to a fairly widespread sense of insecurity... In such a context,' Bottoms writes: 'a politician seeking popularity can reasonably easily tap into the electorate's insecurities by promising tough action on `villains' - even if... the public are actually rather less punitive than this when confronted with real situations of criminality'. (Bottoms 1995: 47).

This is a suggestive argument. It takes seriously the fact that politicians are operating in a competitive electoral climate. Political responsibility in such a context will often involve showing the electorate that you care, rather than spouting the well-intentioned nostrums of a penal reformist agenda. Bottoms' argument also takes seriously the influence of material circumstances on public opinion and aspirations, and on notions of what is politically attractive or achievable. As such, it is a welcome antidote to some attempts to explain public opinion, which sometimes tend towards implying that the electorate are little short of an unthinking rabble.

Considered in this way, the government's claims about criminal justice failure are but one of the ways in which Labour does populist punitiveness. In colloquial terms, the public are right that there is never a policeman around when you need one, or that dangerous criminals are getting off scot-free. The government shares their concerns and is doing something about it. Labour places the concerns of `Mondeo Man' and `Worcester Woman' at the heart of its programme. As a strategy for maintaining ongoing electoral support, populist punitiveness has involved a combination of reflecting back to the public their commonsense prejudices, throwing in tough policies to show that you are serious.

The conceptual strengths of Bottoms' argument acknowledged, its weaknesses also merit some comment. Chief among these is the lack of explanation of the drivers of modernity that, Bottoms argues, has proven so unsettling for politicians and the public alike. Bottoms serves up a story of profound socio-economic changes without ever really identifying the author. Rather like animals locked into the Darwinian struggle for survival, for whom the changing ecology of natural world provides a determining backdrop, the politicians and public in Bottoms' account appear to be largely passive objects of processes over which they seemingly have little or no control.

But this can not be the case. Politicians and political parties are elected to implement political programmes, not merely to manage events as best they can. Part of the art of politics in a liberal democracy involves mobilising public support for these political programmes. Sometimes this involves arguing the case on its merits; sometimes lying or dissembling. And sometimes it involves redefining the terms of the discussion, winning support to your cause in the process.

A classic study of the latter approach in the field of criminal justice is the groundbreaking analysis of the 1970s mugging panic by Stuart Hall and other colleagues associated with the Birmingham Centre for Contemporary Cultural Studies (Hall et al 1978). As many here will know, in that study Hall and his colleagues attempted to show how popular fears in the early 1970s about violent crime - themselves a function of a far more profound crisis in the Keynesian welfare state - were mobilised by the political right in the service of an agenda aimed at nothing less than a reordering of the British state along Thatcherite lines.

Hall subsequently developed the concept of `authoritarian populism' to explain the ideological process at work. Authoritarian populism, Hall argued, was not about politicians merely playing electoral games, giving the public what they want, as Bottoms' `populist punitiveness' would have it. Nor were those politicians who indulged in authoritarian populism merely passive objects of the forces of modernity, mucking along as best they could with everyone else. On the contrary, they were actively engaged in a political agenda aimed at reconfiguring the public's understanding of the nature of the political crisis affecting the British state. So reconfigured, Thatcherism - with its emphasis on order and authority, and on freeing the economy from the dead hand of Whitehall and the power of the trade unions - was presented as the answer to the problems affecting the British economy and British society in the 1970s. Authoritarian populism, then, `is no rhetorical device or trick,' Hall wrote in his seminal 1978 essay, `The Great Moving Right Show': 'it has a rational and material core. Its success and effectivity do not lie in its capacity to dupe unsuspecting folk but in the way it addresses real problems, real and lived experiences, real contradictions - and yet is able to represent them within a logic of discourse which pulls them systematically into line with policies and class strategies of the right' (Hall 1978: 56)'.

The political crisis of the Keynesian state, which helped to usher in the Thatcher administrations, Hall observed in a later essay, was `not a given state of things, but an actual field of struggle, on which the forces of the right have been actively intervening' (Hall 1980: 146).

This is a more nuanced account of the politics of law and order than that offered by Bottoms, largely because Hall takes seriously the fact that politicians and political parties are engaged in the serious business of constructing and implementing political programmes. He then uses this rather obvious observation to demonstrate how the politics of law and order becomes a means of gaining support for these programmes, as well as excluding from consideration other possible political strategies. Part of the success of authoritarian populism in the 1970s and 1980s, for instance, revolved around winning consent for the proposition that crime was a matter of moral failure and family breakdown, rather than of complex social processes related to poverty, patriarchy and other unequal power structures. The political right was dominant in ideological terms during the 1980s and 1990s, among other reasons, because it successfully closed down debate about alternative ways of running the economy and British society: `there is no alternative', as the Thatcherite slogan had it.

And so we come, through a slightly circuitous route, back to the question of why Labour has developed the analysis and policy trajectory on criminal justice that it has. Put another way, what purpose is served by the centrality of the criminal justice discourse in contemporary politics, and the claims made about its failure to deliver.

A key political challenge when Labour came to power in 1997 involved the marrying up two profoundly contradictory policy commitments. On the one hand, Labour recognised that Thatcherite economic policies had had a devastating impact on a large layer of the population, most of whom were natural Labour voters. At an individual level, increased poverty and inequality had had a profound impact on health, well-being and mortality rates, as Danny Dorling and Richard Wilkinson, among others, have shown (Dorling 2004; Wilkinson 2005). At a broader, social, level what we have come to know as `social cohesion' had been significantly damaged. `[W]e... need to appreciate,' David Blunkett wrote in 2001, `the scale of the social disaster brought about by the neo-liberal period' (Blunkett 2001: 79).

On the other hand Labour was committed to the general trajectory of neo-liberal economic and social policies that had played such a central role in creating the social wreckage Labour inherited in 1997. This meant that as well as facing a legacy of deep social problems systemic to the neo-liberal state, the policy options at Labour's disposal were unlikely to resolve them, in the short- or longer-term. Labour was not going to turn back the clock, as some Labour Party members urged the leadership to do. Indeed `the novelty of New Labour in 1997,' David Coates has recently pointed out, `lay primarily in its refusal to deploy many of the standard policy instruments of Old Labour' (Coates 2005:32). But nor did Labour seek radically to reset the policy agenda in ways that might have started to bear down on the problems that it inherited. As a result, Labour in office has placed renewed emphasis on criminal justice mechanisms as a means of regulating the social problems it is unable or unwilling to resolve at a structural level.

In this light, Labour's claims about criminal justice failure paradoxically offers ideological cover both for its criminal justice policies and for its failure to do anything more meaningful to address the material problems afflicting the many millions of casualties of neo-liberalism. The problems resulting from material insecurity and unequal power relations are presented as technocratic problems, the solutions to which lie in improvements to the workings of the criminal justice system. Talk of inequality and poverty, or challenging power structures, is displaced as either unrealistic or simply irrelevant.

In conclusion, criminal justice is one of the means by which capitalist societies regulate the complex social interactions of their citizenry. It sits in dynamic relationship with other factors and forces within those societies that tend towards greater stability and instability, justice and injustice, safety and unsafety. These other factors and forces include the related social policy mechanisms that make up the welfare state regimes of different countries, as recent work in this area has reaffirmed (Cavadino and Dignan 2006). It also includes the underlying class, gender and other power relations that play such a decisive role in the life choices that people make and the life experiences - positive and negative - they have. The criminal justice system, in other words, occupies no natural place nor size in the social order. Its size and scope are, at heart, the product of political decisions.

The public policy challenge, among other things, involves engaging in a debate about what the role and limits of criminal justice should be, and what other policies and mechanisms should be at our disposal to address the many crimes, harms and other depredations that differentially affect us all.


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