This chapter is about penal convergence which was then followed by divergence between two clusters of societies: England and New Zealand on the one hand, Finland, Norway and Sweden on the other. First it examines and explains initial post-1945 convergences between them in relation to prison rates and prison development. Secondly, it traces and explains the divergences that have since occurred between them. While these divergences begin around 1960, their pace has quickened, asFigure 10.1 illustrates in relation to prison rates (although Finland did not follow the same course as the other Scandinavian societies until the late 1960s). Indeed, the differences have become so marked that the Anglophone societies are now known for their penal excess (very high levels of imprisonment and deteriorating prison conditions), while the Scandinavian societies are known for their penal exceptionalism (very low levels of imprisonment and humane prison conditions).

What lies behind these moves from convergence to divergence? Any full account will involve a multi-factored explanatory framework, as recent research in comparative penology suggests. In this chapter, however, I want to give attention to the way in which the differing models of welfare state in these two clusters impacted on respective penal developments. The chapter thus draws on Esping-Andersen's (1990) typologies: the ‘liberal welfare state’ of the Anglophone countries that involved modest, means-tested benefits usually targeted at low-income dependents; and the ‘social democratic welfare state’ of the Scandinavian countries that involved universal provision and high rather than subsistence levels of benefit.

Over the last ten to twenty years, nation states in Western Europe and North America have become somewhat concerned about their publics' reaction to criminal justice (Hough and Roberts 1998; Mattinson and Mirrlees-Black 2000; Judicature 1997). Recent interest in measuring confidence in criminal justice and indeed in developing measures for confidence cross-nationally is a testimony to that concern. Public views on the quality, trustworthiness and legitimacy of criminal justice institutions are newly important, and to be sought, even though governments of nation states vary as to whether they feel that popular views should be mirrored by policy changes.

Several trends have contributed to the perceived need of states to consider public reactions in relation to criminal justice. One is the increasing salience of crime and insecurity politically. Though criminal justice responses to crime are almost certainly now a minor part of states' responses, with crime prevention, controlling social disorder in neighbourhoods and homeland security being dominant trends, criminal justice responses are still seen as a state responsibility and have symbolic importance. Where criminal justice is seen to fail, for example related to major cases such as the Dutroucx case in Belgium, overall citizens' perceptions of government efficacy fall.

Introduction

Those who would like to see the international criminal trial remain a retributive endeavour reflecting the conventional features and characteristics of domestic trials are concerned that enhancing victim constituency for the international trial process will endanger its limited potential success (Judah and Bryant 2003). Some critics declare that the International Criminal Tribunal for the former Yugoslavia (ICTY) in particular has achieved legitimacy through the effective prosecution of significant offenders important to many victim communities (Findlay and McLean 2007). In this, it is argued, lies sufficient justification for the expansion of a retributive international trial process in the form of the International Criminal Court (ICC). In addition, the disclosure debacle around the first ICC indictment, which clearly divided the interests of the prosecutor and of victims heightens the challenges to conventional trial positioning if victim interests are given standing.

Despite such narrower legalist assertions the ICC, and its prosecutor, have claimed more universalist justifications in the form of the court's potential to assist in state reconstruction and peacemaking. Further, the ICC and the international tribunals which precede it have within their authorising legislation growing recognition of victim interests, even if this remains largely outside the processes of trial decision making.

Perceptions of security and order increasingly inform how urban spaces are imagined, designed and governed. Drawing on insights from two research studies, this chapter charts the manner in which dynamics of exclusion previously confined to the shopping mall and other examples of ‘mass private property’ are gradually being extended into the public realm. It outlines the privatisation of public spaces, the emergence of novel forms of spatial exclusion and the growing importance of conditionality as the basis for access to resources, goods and services. Attracting ‘good customers’, whilst intercepting and deflecting ‘flawed consumers’, is an increasingly dominant logic of contemporary urban governance. Consideration is given to the politics of behaviour as institutionalised in the British antisocial behaviour agenda and its comparative implications. In particular, the chapter focuses on the ways in which young people as ‘non-consumers’ are problematised and policed. It is argued that strategies and technologies of ‘preventive exclusion’ deployed and developed on private property now routinely inform the governance of public spaces. Public streets are being ‘reordered’ through the banning and dispersal of those who do not conform to the consuming majority or those whose appearance jars with the prevailing vision of an ordered world in which security pervades urban environments.

Introduction

In the last two decades, the United Nations (UN) Security Council has – almost accidentally – created the rudiments of a system of international criminal justice. This chapter explores the Security Council's development of these foundations of a system of international criminal justice and its unintended consequences. In both investigation and fact-finding, and in its sanctions practice, the Council's approach has moved in the last twenty years from one based on interstate and diplomatic tools towards arrangements that more closely resemble criminal justice tools found at the national level. And in each case, this has led to calls for similar procedural norms that govern criminal justice at the national level – such as due process and the need for an impartial decision-maker – to govern the use of these tools at the international level.

The relationship between the Security Council and the development of international criminal justice tools is a surprisingly under-studied question. While there have been numerous examinations in recent years of the Security Council's human rights and rule of law obligations (Clapham 2006; Chesterman 2008, 2009; Flynn 2006; Wood 2006), most of these studies are confined to theoretical examinations of the application of international law to the Council, or its subsidiary organs of the Council (see Goldstone and Smith 2008 and Zappalà 2003 on international criminal tribunals; and see Farrall 2007 on sanctions mechanisms).

Introduction

The organisation of policing and, in a wider sense, security is undergoing considerable restructuration in Western societies (Crawford 1999; Hughes and Edwards 2002; Crawford et al. 2005; Jones and Newburn 2006; Wood and Dupont 2006; Fleming and Wood 2006; Henry and Smith 2007). A key development is that the government is losing its previously taken-for-granted dominance over crime and disorder control under pressure of ‘polycentric’ or ‘networked’ agents and agencies. Accordingly, at the local level, police forces and municipalities find themselves in a ‘multilateralised’ environment of both organisational auspices authorising security and policing and providers who supply executive personnel (Bayley and Shearing 2001). These auspices and providers do not necessarily overlap. It is, on the contrary, possible that a municipal authority (public) hires commercial security guards (private) to patrol the streets. Auspices and providers may have become separated. In this manner, the classical distinction between ‘the public’ and ‘the private’ has proved problematic (Jones and Newburn 1998; Kempa et al. 1999; Johnston 2000). Organisations have become part of ‘amorphous’ or ‘hybrid’ assemblages that feature different degrees of ‘publicness’ and ‘privateness’ (Dijkstra and van der Meer 2003).

In the last decade, there has been a welcome revival of criminal justice scholarship which engages with the macro-level political–economic forces which are shaping criminal justice policy in western democracies. Many of these accounts are rooted in the global economic changes which began in the 1970s – recession, the contraction or even collapse of manufacturing industries, the growth of unemployment and the creation of a large sector of people either long-term unemployed or employed in insecure forms of work. These changes, it is argued, have eroded the consensus which sustained post-war penal welfarism. As significantly rising recorded crime across Western countries gradually produced a situation in which the experience of criminal victimisation, and of managing the risk and fear of crime, became normal features of everyday life for the economically secure, crime became an increasingly politicised issue, generating a ‘penal populism’ which brought in its wake a combination of repressive and managerial criminal justice strategies.

Introduction

Within the sociology of punishment, a veritable industry has built up both charting and theorising changes in the nature and function of crime control and penal practice in the context of late modernity (Garland 2001; Feeley and Simon 1992; O'Malley 1992). In this chapter, I will suggest that this field of scholarship has become dominated by a methodological dualism between accounts which lay emphasis on structural factors and those which lay emphasis on cultural factors. I will argue that this dualism constrains our capacity to understand the variations in crime control and penal policy which are evident across many Western jurisdictions, principally because it fails adequately to capture the multi-level nature of contemporary modes of governance both above, but, more particularly, below the nation state. A key aim of the chapter is to set out an alternative methodological strategy with which to interrogate recent developments; a strategy which draws on the vocabulary of systems theory. The chapter is built around a case study comparing Scotland and Spain with England and it comprises four interrelated parts. Part 1 overviews key variations in crime control and penal policy within my selected jurisdictions as they have evolved over the past forty years. Part 2 describes the methodological dualism within the sociology of punishment and highlights its limitations in terms of this case study. Part 3 sets out an alternative methodological strategy. Finally, Part 4 implements this strategy, offering a rereading of the case study within its own terms.

Introduction

This chapter is concerned with crime prevention as part of a broader picture of urban governance. It focuses on residential areas in the UK and specifically on gated developments, a relatively new but fast-proliferating form of housing frequently cited as an exemplar of the current era's ‘fortress mentality’ (see Blakely and Snyder 1997; McKenzie 1994; and special issues of Environment and Planning B 2002 29: 3, GeoJournal 2006 66: 1–2, and Housing Studies 2005 20: 2). Academic debate has tended to concentrate on analysing the driving forces for gated communities as a particular urban form and on the implications of their recent growth for social exclusion and social cohesion, with less emphasis on whether gated communities are effective in preventing crime or merely cause displacement. The term ‘gated community’ is usually understood as a form of private residential neighbourhood defined by a physical boundary, as well as by a legal framework which relates only to that neighbourhood and which binds the residents contractually through their property rights (Atkinson et al. 2003).

Here it is argued that boundaries and enclosures of all kinds are now established as a key technique of governance in late modernity, the period from the latter half of the twentieth century to the present (Garland 2001). Walls are a visible sign of the current obsession with boundaries, and can be seen at many scales: the fortified border between Mexico and the USA, the West Bank wall, guarded refugee camps and gated communities.

There is a growing number of academic ‘–isms’ and ‘–isations’ aiming to describe the trans-border interconnectedness of the contemporary social condition. Internationalisation, globalisation, transnationalisation, glocalisation – to name but some – have become increasingly popular fields of criminological inquiry. A common part of globalisation debates has been an image of failing state sovereignty, even propositions of its withering and death. While newspaper reports, political discourse and activist slogans forcefully mobilise for the rescue of the national under threat, the assumption about the ‘victimhood of the national’ is nevertheless also implicit in much of academic discourse about globalisation and crime. It is an assumption, seldom explicated, yet nevertheless present in various forms and, to greater or lesser extent, in many criminological narratives about globalisation. The growth of unaccountable international surveillance and policing networks and transnational legal orders is seen to be eroding the powers of nation states and, ultimately, raising the question of their survival (Mathiesen 2006). The fall of the golden age of the welfare state under the relentless attacks of neoliberalism offers yet another account of falling state sovereignty. Here, globalisation tends to be equated with its economic motor – neoliberalism – inevitably leading to more social inequality, crime, violence and insecurity and, consequently, increased levels of punitiveness.

It is almost a cliché to argue that while European governments favour a world order based on international law and organisation, Americans see international society as an epiphenomenon of American power. Robert Kagan (2003: 3) famously captured this when, at the height of the Iraq War controversy, he wrote that ‘Americans are from Mars and the Europeans are from Venus’. Where the latter were ‘realising Immanuel Kant's “perpetual peace”’, the former was ‘mired in history, exercising power in an anarchic Hobbesian world where international law and rules are unreliable, and where true security and the defense and promotion of a liberal order still depend on the possession and use of military might’. Chastened by what America found (or did not find) in Iraq, Kagan seemingly stepped back from some of the implications of this analysis. The USA, he concluded, could not and should not ignore the question of legitimacy and the role that law played in providing that. The USA must realise, moreover, that it could not claim legitimacy by acting unilaterally in its self-interest and without reference to the greater good (Kagan 2004). Yet even after recognising this, Kagan argued, the two continents would remain politically divided. That schism might not reflect the Hobbesian–Kantian divide as implied in his earlier work.

Introduction

On an average day in 1997 there were 4,687 youths in custodial facilities in Canada (a rate of 192.13 per 100,000) and by 2005–6 there were 1,987 (a rate of 77.42 per 100,000). Canada has a rather lengthy history of being concerned about the overuse of custody for youths and has struggled for some time to reduce it. In 1965 a government committee released the first report on youth justice and noted great concern about the use of court and custody for minor offences (Department of Justice 1965). Since then, most government reports have reiterated those concerns. However, during the late 1980s onwards the Canadian public became increasingly concerned about crime and wanted the government to ‘toughen-up’ the youth justice system. The government was therefore in a difficult position – for political reasons it felt that it should respond to the public, but there were also the persistent concerns that custody was actually being overused. How Canada managed to reduce the use of imprisonment for youths during an era where there was considerable pressure from the public to ‘toughen-up’ the youth justice system is the focus of this chapter. More generally, this chapter uses Canada's youth justice reforms to explore the limits of policy convergence and policy transfer between Canada and the USA. Youth justice policy in Canada appears to be driven more by social, political and cultural specificities and less by simple policy transfer from the USA.

Introduction

Canada does not fit easily into the typology of political economies and their penal tendencies proposed by Cavadino and Dignan (2006a; 2006b). Based on a study of penal systems in twelve contemporary capitalist countries (not including Canada), these scholars demonstrate a relationship between a nation's political economy on the one hand and the punitiveness of its penal culture (particularly as expressed by its rate of imprisonment) on the other hand. Indeed, they suggest that certain political regimes (e.g. neoliberalism, conservative corporatism, etc.) have distinct penal landscapes (i.e. more or less punitive penal policies).

In terms of penal policies, most observers would probably assume that Canada would fit neatly within those nations described as having political economies and penal tendencies that could be categorised as neoliberal. This placement would certainly seem obvious given geographic, economic and cultural proximity to the country highlighted by Cavadino and Dignan as the ‘archetypical example’ of this group (USA). In addition, it would seem natural that Canada would be grouped with the ‘other examples’ of the neoliberal political economy listed by these scholars – England and Wales, Australia, New Zealand and South Africa – given their historical (e.g. as members of the Commonwealth) and institutional (similar legal systems) ties.

Introduction

The title of this chapter may appear somewhat ambiguous at first sight, as it implies both an empirical and a normative question. Do universal crimes lead to universal justice? And should universal crimes lead to universal justice? However, as with all crime, the very nature of the phenomenon and any intellectual inquiry into it are normative matters and the questions as to whether we either have, or should have, universal justice cannot be regarded as separate issues. Moreover, the answer depends on many things, but most importantly on who is asking the question, who is doing the answering, and what they define as crime and as justice. In international legal-political terms, universal justice and universal crimes are equated with the definitions found in the international instruments providing procedures for judging and sanctions against specifically delineated ‘core international crimes’: genocide, crimes against humanity and war crimes. Logically, universal justice then becomes the reaction of the international community through ad hoc tribunals or the International Criminal Court (ICC), or the incorporation of such international definitions into national criminal law and procedure according to the universality principle of jurisdiction.

However, the fact that we have a body of international criminal law that can be institutionally upheld does not of itself mean that we have universal justice. Neither should the legitimacy of the international response be taken for granted. For, to be legitimate, any form of justice must deliver in many senses of the word – and universal justice must deliver universally.

Introduction

The power to define acts as crimes and the institutionalisation of processes of criminalisation are intimately bound up with the law-making power and identity of the nation state. Similarly, the ability to enforce criminal norms through coercion is equally entwined with the state's claim to sovereignty and its monopoly over the use of legitimate force. Consequently, criminal law and criminal justice represent pre-eminent and central symbols of state sovereignty, and claims over the state's capacity to regulate populations and activities within the confines of its territorial borders. Crime control, therefore, is intrinsically tied up with questions of national identity and self-characterisation. It is infused with, and reflects, the moral, cultural and political frames of reference that inform a society and constitute membership (i.e. citizenship) for given peoples within specified geographical boundaries.

Increasingly in recent years, the capacities, competencies and legitimation claims of the nation state have been called into question – in the field of crime and social control as elsewhere. ‘Fluidity’, ‘liquidity’ and ‘movement’ appear as the defining characteristics of the contemporary age (Lash and Urry 1994; Bauman 2000; Castells 2000). In the modern era, people, goods, capital, technologies, information and communications, as well as ‘risks’, appear to be on the move in ways that cut across territorial boundaries and question the capability of the state as the ultimate ‘power-container’.