Dzur EUA AWD2

The Myth of Penal Populism: Democracy, Citizen Participation, and American
Hyperincarceration
Author(s): Albert W. Dzur
Source: The Journal of Speculative Philosophy, Vol. 24, No. 4 (2010), pp. 354-379
Published by: Penn State University Press
Stable URL: http://www.jstor.org/stable/10.5325/jspecphil.24.4.0354
Accessed: 27-06-2016 02:32 UTC
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
http://about.jstor.org/terms
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted
digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about
JSTOR, please contact support@jstor.org.
Penn State University Press is collaborating with JSTOR to digitize, preserve and extend access to The
Journal of Speculative Philosophy
This content downloaded from 128.42.202.150 on Mon, 27 Jun 2016 02:32:32 UTC
All use subject to http://about.jstor.org/terms
jsp
The Myth of Penal Populism: Democracy,
Citizen Participation, and American
Hyperincarceration
Albert W. Dzur
bowling green state university
But the action of the common people is always either too remiss or
too violent. Sometimes with a hundred thousand arms they overturn
all before them; and sometimes with a hundred thousand feet they
creep like insects.
—Montesquieu
Late modernity, when things and people are so fluid and fast until they
stop, is a time of unsettled democratic identities. A well-known image of
Magritte’s, entitled La folie des grandeurs, or Megalomania, depicts a female
torso in three stacked hollow segments of inclining scale, the top fitting
into the middle fitting into the bottom. This headless and limbless body set
against Magritte’s trademark blue sky is more suitable in some respects as a
symbol of contemporary democracy than Montesquieu’s early modern sim-
ile. Full of ourselves, eager to take back the system from the elites who have
deviated from core principles and fail to serve the people, convinced that we
“ordinary Americans” are the source of what is legitimate in public institu-
tions, and yet we are at the same time insecure, we doubt whether we can
make a difference, and we resist even medium-range civic commitments
journal of speculative philosophy, vol. 24, no. 4, 2010

Copyright © 2011 The Pennsylvania State University, University Park, PA
JSP 24.4_04_Dzur.indd 354 02/04/11 12:00 PM

the myth of penal populism 355
that take us out of our private sphere for longer than a protest meeting or a
quick signature on a petition. We the people do so much, and yet we don’t.
This essay was written at a time when one in a hundred American
adults are in prison or jail, one hundred thousand are in the juvenile jus-
tice system, and many more are economically dependent on the penal
state. The United States is the “world champion” of incarceration.1 Special
formatting is needed to include American incarceration rates in the tables
and figures of comparative studies, such is their outlying character.2 As
striking as the numbers themselves is the lack of any discernable public
embarrassment about them.3 The demos appears just like the Magritte
image: hollow, both mobile and immobilized at the same time, trapped
by itself. Most Americans outside the criminal justice system, including
most democratic theorists, evidence little awareness of the inconsistency
between hyperincarceration and the country’s core values: equality, indi-
vidual liberty, political freedom. This everyday hypocrisy is not lost on for-
eign observers, who increasingly understand American-style democracy as
something to be avoided rather than emulated.4
The implications of hyperincarceration for understanding contempo-
rary democracy have yet to be developed in political theory, but the work
that has been done, combined with that of theoretically inclined scholars
within criminal justice, reveals a thoroughgoing skepticism about the abil-
ity of the public to punish fairly and humanely.5 These sophisticated and
often well-justified arguments, which I will term the “penal populism the-
sis,” provide important insights into the political context and offer poten-
tial solutions. I will critique but also make use of this thesis to discuss
how a less dysfunctional relationship between citizen participation and the
American penal state can develop out of a more rather than less democratic
criminal justice system.
1. Too Much Democracy
The Penal Populism Thesis

In criminology circles, unbridled lay participation is seen as a major cul-
prit of the bloated penal state. Anthony Bottoms introduced the concept of
“populist punitiveness” in 1995 to describe an increasingly potent influence
on contemporary criminal justice systems. Reflecting on the politicization
of sentencing, especially with respect to violent, sexual, and drug-related
JSP 24.4_04_Dzur.indd 355 02/04/11 12:00 PM

356 albert w. dzur
offenses, Bottoms described populist punitiveness as “politicians tapping

into, and using for their own purposes, what they believe to be the public’s
generally punitive stance.”6 Building on this analysis, but changing the
phrase to “penal populism,” John Pratt and others have argued that it goes
beyond a certain kind of politics and electioneering and represents rather
a multilayered sociopolitical complex afflicting most modern Western
states, with particular virulence in the Anglo-American world of the
United Kingdom, New Zealand, Australia, and the United States.7 At its
most basic level, these scholars argue, penal populism reflects feelings of
insecurity resulting from the social fragmentation, job loss, underemploy-
ment, and threadbare welfare safety nets characteristic of modern neolib-
eral polities. Political entrepreneurs use the promise of criminal justice
reform to focus and channel the worries of publics increasingly frustrated
with a government seen as ineffective at helping them cope with the inse-
curities of late modern lives.8
The penal populist complex is marked, first, by distrust of officials in
all branches of government along with the policy experts and profession-
als who advise them. As in other advanced industrial democracies, U.S.
surveys report striking downward trends in public trust over the last forty
years.9 In 1960, a small minority—one out of four Americans—agreed
with prompts like “People like me don’t have much say in government” and
“Public officials don’t care what people like me think,” while a majority—
three out of four—agreed with the statement “You can trust the government
in Washington to do what is right all or most of the time.” By the 1990s,
these numbers had reversed, with three out of four Americans registering
distrust in government.10 Compounded by the neoliberal rhetoric that domi-
nated public discourse in the 1980s and held, as Ronald Reagan put it in his
first inaugural address, that “government is not the solution to our problem;
it is the problem,” officials and their advisers faced skeptical publics and
shifting policy terrain. In criminal justice, Ian Loader has written of the
“fall of the Platonic guardians” in the United Kingdom beginning in the
1980s, in which previously close relationships among professionals expert
in criminal justice issues, civil servants, and political power holders began
to erode.11 In the United States, public confidence in the criminal justice sys-
tem was the third lowest of the fourteen government institutions surveyed.12
A second feature of penal populism closely linked to the decline in trust
in experts and officials is the erosion of traditional barriers between elec-
toral politics and criminal justice policy. Sweeping criminal justice reforms
JSP 24.4_04_Dzur.indd 356 02/04/11 12:00 PM

have gained momentum outside formal channels within government

and through atypical electoral measures such as referenda and initiative
procedures in which nongovernmental organizations and pressure groups
have more impact. By the mid-1980s, writes Pratt, many countries wit-
nessed “a much stronger resonance between governments and various
extra-establishment individuals, groups and organizations which claim
to speak on behalf of ‘the people’ in relation to the general development
of penal policy,” all while traditional mainstream experts and advisers lost
influence.13 Reformers wanted to assert public influence through bypassing
the formal government procedures seen as elitist and ineffective by many
citizens.
The third and most distinctive aspect of penal populism is its equat-
ing effective punishment with severity, in the form of lockstep imprison-
ment for longer terms. The object of criminal justice reform in countries
affected by these trends is thus neither improved methods of rehabilitation
for offenders nor more carefully targeted strategies of graduated sanctions
but, rather, the removal of checks on severe penalties with a goal of com-
municating to convicted and prospective offenders alike that the state is
“tough on crime.” Such severity is antielitist in spirit, a reaction to the per-
ceived ineffectiveness of two prominent waves of expert-led criminal justice
reform: the rehabilitative movement of the 1950s and 1960s and the “just
deserts” efforts of the 1970s. Both waves of reform allowed officials such
as corrections and court professionals a degree of discretionary authority
that later became suspect. This severity is also symbolic, as Tom Tyler and
Robert Boeckmann have pointed out, resonating with some people even
when crime rates are stable or falling, because punishment stands for the
assertion of social order at a time of flux.14
Finally, penal populism is marked by the emotive nature of political
rhetoric. Richard Sparks has noted how the feelings, sensitivities, and intu-
itions at the core of debates appear impervious to critical discourse and
academic interventions that by raising questions of effectiveness, long-
term costs and consequences, and conflicts with constitutional norms and
political values could cast doubt on the course of policy action favored.15
Arie Freiburg sees penal populism as “an emotional, non-rational, expres-
sive trend,” a mirror image of the “formal, rational, administrative and
routinized forms of law” favored by criminal justice professionals.16
Long-standing patterns of racism and racial distrust in American political
culture are contributing factors, as Loïc Wacquant has noted, that render
JSP 24.4_04_Dzur.indd 357 02/04/11 12:00 PM

358 albert w. dzur
more rigid the popular perceptions of criminal offenders as unreachable

others.17 Further exacerbating the emotive character of the discourse,
commercial and infotainment tendencies in the mass media encourage
editors and reporters to bypass independent rational analysis in favor of the
rapid, shocking, and raw stories and images that sell better.
Penal Populism in Practice: Three Strikes in California

One of the most discussed examples of penal populism is the “three strikes
and you’re out” policy that passed into California law in 1994. Both the pro-
cess leading up to the legislation and its substantive content clearly exhibit
the four aspects of the penal populist complex. Looking more closely at
three strikes in California also raises questions about the analysis that point
in different directions.
Distrust of officials and experts, and indeed anger about perceived
government missteps, was clearly part of the three strikes movement in
California. Interviewed the day Republican Governor Pete Wilson signed
the three strikes bill into law, the leader of the ballot initiative drive com-
mented that “the one unindicted perpetrator of my daughter’s murder was
the State of California. They left the door to the zoo open, and that’s what
we’re doing now is closing that door.”18 As Franklin Zimring et al. point
out, 1994 was a “low point for citizens’ trust in state government” and “dis-
trust means that citizens worry that judges will identify with offenders and
treat them with inappropriate leniency.”19 The “radical subtext” of the three
strikes movement was that “the criminal and the judge have become the
citizens’ common enemy.”20 This subtext explains why no expert analyses
of the costs, benefits, and values of three strikes and alternative policies by
academics or criminal justice professionals were sought by political lead-
ers at the time three strikes legislation was being engineered. As Zimring
et al. put this, three strikes “was unexamined at any stage in the political
process.”21
Three strikes in California began as a ballot initiative led by Mike
Reynolds, whose eighteen-year-old daughter, Kimber Reynolds, had been
shot to death by an assailant fleeing a restaurant he had just robbed. The
initiative process, a Progressive-era “good government” reform, requires
the legislature to take a proposal up for consideration as a bill if it has
gained enough mandated signatures to be put on a ballot and has then been
approved by a majority of the electorate. The three strikes initiative gained
JSP 24.4_04_Dzur.indd 358 02/04/11 12:00 PM

the support of a number of victims’ rights groups, the prison guard union,
and the National Rifle Association, but public support was not particularly
strong until the month-long search for twelve-year-old Polly Klaas, who had
been abducted, sexually assaulted, and murdered by a recent parolee with
two previous violent offenses on his record.22 Writing in December 1993,
a few weeks after Polly Klaas’s body had been found, the New York Times
reported that three strikes had become a “rallying cry”: “Frightened by the
spread of random violence in their neighborhoods, struck by how often
those crimes are committed by repeat offenders and frustrated by what
they consider legislative inaction, California voters are signing petitions for
the Reynolds measure at the rate of 15,000 a day.”23 After the election and
once in the California legislature, a bill mirroring the three strikes initiative
found little resistance from Democrats in either the assembly or senate,
who feared electoral repercussions and did not want to give the Republican
governor any political advantages.24
The laws that resulted from this hasty, nondeliberative process were
some of the country’s most severe: they required people convicted of a
third felony to serve between twenty-five years and life in prison. Also
part of the legislation was a two strikes provision that doubled the sen-
tence for someone convicted of a second felony offense. In the state of
Washington, where three strikes legislation was pioneered in 1993, only
certain serious felonies triggered a life sentence upon a third conviction.
In California, by contrast, even some nonviolent offenses could be liable
for a three strikes conviction; any felony offense could count as the third
strike. Penal populist reforms in California thus cast a wide and finely
woven net, catching violent and nonviolent offenders alike. By 2001,
seven years into the legislation, California had 6,721 prisoners sentenced
under three strikes and another 43,800 under the second strike provi-
sion. By 2010, California would lead the nation with a prison population
of 167,000 inmates.
Public discourse during the initiative process was emotive, symbolic,
and superficial, with little other than bare economic cost counterarguments
marshaled as a challenge. Commonplace even in leading elite newspapers,
such as the Los Angeles Times, were highly negative images of offenders,
derogatory public comments about repeat felons as subhuman “three-
time losers,” “human debris,” and animals best kept in cages. Opposition
viewpoints mainly addressed prison overcrowding, public expenditures,
and possible increases in taxation.25 Three strikes advocacy was equally
JSP 24.4_04_Dzur.indd 359 02/04/11 12:00 PM

360 albert w. dzur
shallow, with just deserts for so-called career criminals and deterrence and
incapacitation goals present in the background but rarely articulated in
ways that could be examined and critiqued. As Michael Tonry and others
have noted, three strikes was seen as “a symbol of revulsion with crime and
outrage toward politicians,” and thus the public debate stayed at the some-
what primitive choice between “morality and immorality,” “responsibility
and irresponsibility.”26
While it is clear that California three strikes exhibits all the classical
features of penal populism—distrust, political pressure arising from out-
side formal legislative and executive channels, severity, emotion, and
symbolism—what is equally striking are the ways these reforms, though
“giving the people what they wanted” in some respects, failed in many other
entirely foreseeable ways to serve them well. Saying things with walls, to bor-
row A. J. Skillen’s pithy phrase, is expensive and inhumane.27 At eight billion
dollars a year, hyperincarceration in California consumes 11 percent of the
state’s budget. What, Pratt asks rhetorically, has been the purpose of all this
suffering? “To win votes for devious politicians, who are likely to find they
have done nothing to improve their levels of trust with the public in this way;
and to gain publicity and status for lobbyists, journalists, talk-back hosts and
so on whose careers thrive on its existence.”28 Neither the process nor the
product has led to greater trust in government or less civic alienation.
2. Bringing the Experts Back In: The Technocratic Response to

Penal Populism
In response to what they see as the democratic dysfunctions of populist puni-

tiveness, a number of scholars advocate removing certain criminal justice
issues that impact incarceration rates from public influence. Some endorse
expert panels and commissions, while others point to countries that have
managed to avoid penal populism through strong traditions of legal and
criminal justice professionalism, such as Germany, Norway, and Canada, as
role models worth emulating. These well-intended approaches have certain
strengths, but they also raise significant practical and normative problems.
Depoliticizing Democracy and Reprofessionalizing Criminal Justice

Franklin Zimring, Philip Pettit, and Nicola Lacey independently advocate
the same institutional solution to the incursions of popular pressure
JSP 24.4_04_Dzur.indd 360 02/04/11 12:00 PM

on criminal justice decision making. They draw on the example of how

modern states extracted core central banking policy from the hands of
legislators and formed regulatory bodies like the Federal Reserve Board in
the United States and the Monetary Policy Committee in the United King-
dom to set interest rates and monetary policy. The chief policy makers in
such bodies are political appointees, to be sure, but they are politically pro-
tected by relatively long fixed terms and are not subject to direct electoral
pressure. Such regulatory boards are classically paternalistic: they protect
the public from itself by preventing legislators from making ill-conceived
short-term decisions regarding interest rates under pressure from their
constituents. Boards function as intermediary bodies that check immediate
and unreflective reactions and give cover to legislators who are able to point
the finger of responsibility at others.
A penal policy board would serve an identical function of “insulated
delegation by design,” in Zimring et al.’s words.29 It would take core
issues, such as the permissible size of the prison population, guidelines
and parameters for the appropriate sentencing of different offenses, and
the ongoing oversight of sentencing practice, off the explicit legislative
agenda.30 It would thus both serve the long-term public interest in fair and
humane punishment while also protecting the short-term electoral interest
of incumbent politicians in retaining office during periods of public ner-
vousness regarding crime. Even if such a penal policy board had only the
power of making recommendations to the legislature, the time required for
its deliberations could provide a much needed cooling-off period between a
highly publicized heinous event and any legislative response to it.
To be effective, penal policy board members would have to be selected
carefully, with an eye on three key factors: expertise in criminal justice, as
evidenced by a record of relevant academic scholarship or distinguished
service as a court professional; partisan balance, achieved by allowing
the major political parties as equal an influence as possible during the
appointment process; and broad representativeness of core social groups
with closely affected interests related to criminal justice policy making,
such as victims’ advocacy groups, prisoners’ rights groups, and associa-
tions that address the needs of historically marginalized groups.31 Penal
policy boards, though insulated from both the public and the legislature,
must also be rendered accountable. This can be accomplished by either
allowing a board only the nonbinding power of recommendation, on the
one hand, or providing checks and balances to whatever binding power is
held by a board. For example, a penal policy board may have the power to
JSP 24.4_04_Dzur.indd 361 02/04/11 12:00 PM

362 albert w. dzur
set general sentencing guidelines, but these would be applied by judges

with some degree of discretionary power. “The best use of a sentencing
commission,” write Zimring et al., “would be to issue broad guidelines
and policy statements that left wide areas of discretion for sentencing
judges in particular cases.”32
A more diffuse response to populist punitiveness, cultural rather than
institutional in focus, is favored by some who take a comparative view of
countries that have avoided populist punitiveness. There is wide agreement
on comparative “risk factors” for punitiveness, which include a market
economy, a majoritarian electoral system, rigid racial stratification, a weak
structure of welfare provision, low public trust in government officials
and policy experts, and the dominance of commercial and infotainment
tendencies in the mass media.33 Recognizing the systemic nature of these
elements might justifiably lead to quiescence among the reform-minded,
since most could not be readily replaced without a major political upheaval.
Still, scholars turn to states with a coordinated market economy, propor-
tional representation, high public trust in government and professionals,
and sober journalists for guidance on what “preventative factors” might
well be developed in response.
One factor that is a practical possibility for reform and could make an
impact on American policy is an effort to enhance a culture of professional-
ism, most particularly in domains like criminal justice administration, law,
and journalism. Scholars have noted that less punitive countries such as
Canada, Germany, and the Scandinavian states maintain a relatively high
regard for the opinion of jurists in academia and criminal justice experts
within the state bureaucracy. “It is noteworthy in Canada,” Cheryl Webster
and Anthony Doob point out, “that those most likely to be in charge of
criminal justice reforms are nonelected bureaucrats, civil servants, and non-
governmental experts, not politicians.”34 These bureaucrats and experts are
both “less susceptible to public pressure” and seemingly more trusted by the
public.35 In Germany, notes Pratt, there exists a “high level of deference to
and respect for criminal justice experts and judges.”36 This group of profes-
sionals is frequently called in by German policy makers for guidance and is
treated with a degree of deference surprising to Anglo-American observers.
Equally important are the professional norms held by journalists, edi-
tors, and managers in the mass media with respect to the handling of crime
and justice issues. The sensationalization of crime has been a staple of
the mass media economy in the United States for more than a century, as
JSP 24.4_04_Dzur.indd 362 02/04/11 12:00 PM

evidenced by well-worn sayings like “If it bleeds, it leads” and grade-school

jokes like “What’s black and white and red all over?” Role model coun-
tries, by contrast, maintain a more sober culture of criminal justice jour-
nalism. Consider the striking contrast in press coverage of two similar
cases involving young children, the 1993 Bulger case in Britain, in which
a two-year-old was beaten to death by two ten-year-old boys, and the 1994
Redergard case in Norway, in which a five-year-old girl was stomped uncon-
scious by three six-year-old boys who left her to freeze to death. The British
press sensationalized the Bulger story by drawing out themes of criminal
justice and social decline, by either ignoring or downplaying expert analy-
sis of the case, and by including popular opinion and self-referential com-
mentary by fellow journalists and media personalities.37 The Norwegian
press, by contrast, desensationalized the story by framing it as a matter
of child welfare and a tragic accident in which there were many victims,
and they included a balance of voices in the reporting in which expertise
outweighed popular opinion claims. Consider, too, the contrast between
American crime news television programs, such as America’s Most Wanted,
which dramatize the cat-and-mouse game of the law enforcement pursuit
of criminal suspects, with the Finnish version, which “is more like an edu-
cational program with criminal justice officials explaining the contents and
functions of the criminal justice system.”38
Practical and Normative Problems with Exclusion and

Professionalization
Two major practical problems affect the models offered to combat penal
populism, rendering them less effective than they might seem. The first
is the lack of will or political capital to launch such reforms that is implicit
in the arguments for them. One of the factors responsible for the populist
punitiveness complex is the distrust of the discretionary power of officials
and resentment of experts who influence officials and yet are resistant
to public accountability.39 Thus changes ushering in more discretion-
ary authority for criminal justice policy making seem unlikely to emerge
under current conditions where such authority registers deep distrust. The
“decline of the Platonic guardians,” as Loader puts it, has been under way for
more than a quarter century in the United States and the United Kingdom;
this trend suggests that forming intermediary expert bodies, even if they
acquit themselves well, will be a constant struggle demanding significant
JSP 24.4_04_Dzur.indd 363 02/04/11 12:00 PM

364 albert w. dzur
influxes of political capital. Bridges to the mediated and technocratic world

of official policy making distrusted by the general public seem a more prac-
tical approach in this respect than more mediated and technocratic bodies.
A second major problem with these models is that they operate at
the system level rather than at the grassroots, where much of the populist
punitiveness action has been found. They seek to change elite politics but do
nothing to engage popular sentiments.40 This disconnection raises questions
about the models’ effectiveness even in the short term. Consider the body
used as a template for reform, the well-insulated financial board. As Tony
Judt has recently noted, the lay public is both underinformed and highly
agitated about government responses to the recent financial crisis and, in
particular, whether using so much tax revenue for bailing out the banking
sector was appropriate.41 Public skepticism is in no small part attributable
to the technocratic nature of fiscal policy in the United States and United
Kingdom. In the long term, failure to engage the public is risky because
sealing off the criminal justice process does nothing to educate, “responsi-
bilize,” or build trust, which is what experts and professionals require to do
their work. Public opinion is left to simmer, only to lash out as soon as the
experts get something wrong.42 A prominent event, such as the recidivism
of Willie Horton during an otherwise successful furlough program, can cre-
ate a political crisis and quickly unravel the insulation from a previously
protected board or agency to impact accountable executives and legislators.43
Even more serious than their practical flaws are the normative implica-
tions of exclusionary and expert solutions to populist punitiveness. In broad
strokes, they imply that the American public is unable to self-regulate,
unable to own up to a more measured approach to criminal justice, to
punish but in a more thoughtful, consistent, and humane fashion, with-
out strict elite guidance: in other words, that the United States requires
a guardian state rather than a democracy. One might respond, as Lacey
does, that such an intermediary body is not foreign to democracies, which
depend upon structures of rights and other protections that limit majority
power.44 Offering a similar defense, Pettit points to how an insulated board
would permit the public to retain “ultimate power over a certain area of
policy,” even though “the elaboration of proposals in that area of policy”
would be left to the board. A properly functioning democracy, in Pettit’s
view, does not entail the “rank populism” of allowing “the public will,
however that will is determined, to govern day-to-day decision-making.”45
These counterarguments notwithstanding, unanswered questions remain
JSP 24.4_04_Dzur.indd 364 02/04/11 12:00 PM

about whether the institutionalization of exclusion and deference would

actually serve the public good with regard to criminal justice.
First, it is not clear that exclusion and deference escape the problems of
politicization said to impede public interests in criminal justice policy mak-
ing. This is evident when one takes a closer look at the three main criteria
for selecting penal policy board members: expertise, non- or bipartisan
qualifications, and representativeness. All of these criteria could become
politicized because none are self-evident. Criminal justice, closely akin to
Aristotle’s understanding of political science as the “queen science,” is really
a composite of numerous other disciplines and is grounded in practical
rather than theoretical knowledge. This means that criminal justice experts
are quite thick on the ground. As for being non- or bipartisan, one would
be hard pressed to find any prominent politician in the United States who
has not contributed to or benefited from the “get tough” platform favored
by penal populism. Representativeness, too, is a matter of political conflict,
given an issue in which prison guard unions and victims’ rights advocates
square off against human rights organizations. Such little middle ground
in the political conflict suggests severe polarization on any insulated board.
Second, an insulated approach to criminal justice policy seems par-
ticularly inapt given the central normative place of the public in defining
the very meaning of a criminal act. What separates a criminal from a civil
offense, and indeed what allows the state to be a party in an offense that
mostly harms an individual victim, is the fact that the public is also thought
to have a stake, to be endangered in some way by the violation of the
criminal code. Further, there is a long tradition of distinguishing malum
in se from malum prohibitum on the basis of public norms: some things
are criminal because they are inherently wrong or harmful, and others,
because the public sees them as such. Additionally, prominent in American
political thought is a robust argument for the transparency of the criminal
law grounded by the fundamental injustice of ordinary citizens being held
accountable to rules that they did not authorize, cannot check, and may not
understand. If at the core of criminal codes is a normative foundation that
is inherently public, it is inappropriate to exclude the public from meaning-
ful participation in criminal justice policy making.
Finally, to advocate exclusion and deference as the public’s role in
criminal justice is to issue a kind of indictment. It is to say that the public,
like a criminal offender, is careless regarding the lives of others and needs
restraints, expert guidance to dampen down normally poor impulse
JSP 24.4_04_Dzur.indd 365 02/04/11 12:00 PM

366 albert w. dzur
control. But this assumption of carelessness is too broad and risks being
a self-fulfilling prophecy: From those for whom civic expectations are low,
what can one expect? Yet American political institutions do not expect the
worst from us; they may be Madisonian and Hamiltonian, but they are not
Hobbesian. The system of criminal justice endorsed in the Constitution
calls on citizens to be more than subjects of the law but active participants
in shaping it, adjudicating it, and even enforcing it as fair, impartial, and
truthful voters, witnesses, and jurors.
3. Recasting the Meanings of Populism
Too Little Democracy

From a democratic theorist’s perspective what is odd about the penal popu-
lism thesis is that it came at precisely the same time as academics were
ringing alarm bells about the demise of social capital, the lack of civic
engagement and citizen participation in the United States. A central guid-
ing metaphor for this intellectual movement was Robert Putnam’s sugges-
tive image of the regular citizen who in the 1960s would have been a part of
a bowling league or club but in the 1990s went “bowling alone.”46 Putnam
and others documented a sharp decline in face-to-face citizen participation
in political and social networks since the 1960s, even while virtual par-
ticipation, as in the form of donations to advocacy groups, had risen. They
argued that social capital—the publicly oriented habits, norms, and interests
that people develop by participating in organizations like school boards and
neighborhood improvement groups—had diminished in the United States
because the social reinforcement for such participation had waned while
asocial demands on time like mass media consumption had waxed. From
shore to shore, think tanks, government commissions, professional asso-
ciation task forces, and other vocal members of the contemporary public
sphere admonished Americans to reengage.
How to make sense of this paradox of both too much popular participa-
tion, albeit concentrated on a specific set of issues, and too little at the same
time? The best way is to see penal populism as a case of democratic deficit
not surplus, a popular movement without the kind of social capital that
would lead to constructive engagement in criminal justice policy making.
How the public was mobilized and what it was mobilized to accomplish are
critical and reveal issues that expertise or deference to elites cannot resolve.
JSP 24.4_04_Dzur.indd 366 02/04/11 12:00 PM

I have pointed to the superficial discourse in the mass media and the
political gamesmanship in the electoral and legislative arenas. These
deficits meant that the three strikes movement in California, though well
organized, was mobilized with a very narrow focus and was impervious to
countervailing arguments and positions. What the movement sought to
accomplish was a quick fix to an apparent crime problem, rather than a
long-range commitment of public attention, thought, and ongoing action.
Three strikes is best understood, then, not as a failure to protect the system
from public participation but as a failure to incorporate it in a constructive,
dialogical way.
Meanings of Populism
The criminal justice discourse on the penal state views populism in a nega-
tive and monochromatic light, overlooking the constructive tendencies of
populist movements historically and neglecting the possibility that public
involvement could lead to less rather than more punitive policy in contem-
porary politics. “Forms of populism that have supported progressive politics
are played down,” writes Roger Matthews, “and the public is perceived as
a largely reactionary force harbouring resentments and animosities, while
the relation between populism and new social movements and democratic
politics is ignored.”47 This rigid discourse has pressed otherwise thoughtful
critics of the penal state to embrace exclusion and deference as solutions,
as we have just seen.
Harry Boyte’s analysis of populism helps clarify both the historic
strengths and contemporary weaknesses of the tradition. Drawing atten-
tion to the way late nineteenth-century American populism encompassed
a range of activities among diverse groups such as farmers’ cooperatives,
labor unions, and temperance societies, Boyte points out that it was ori-
ented around a coherent, if extremely challenging, set of goals: “For farm-
ers, small business groups, and skilled and semi-skilled workers, populism
was a set of organizing strategies, a legislative program, a lecture circuit
aimed at self-education, and a vision of the cooperative commonwealth,
all together. The overall thrust was an effort to bring the economic and
social transformations associated with emerging industry, monopoly capi-
tal, and urbanization under popular control.”48 Populism was an active
response to changes in modern economic, social, and political life that
had disempowered and disoriented large swaths of the public. It sought
JSP 24.4_04_Dzur.indd 367 02/04/11 12:00 PM

368 albert w. dzur
to develop civic capacity in the broadest and most concrete sense, in the
hope that the people could “exercise control over larger structures, both
corporate and bureaucratic, that were reshaping the United States from
a nation of small towns and a largely agricultural society to an urbanized,
industrialized nation.”49
Analyses of penal populism overlook a positive element sometimes
present in populist movements, which gives them strength even under
the toxic conditions of current politics: their constructive understanding
of citizenship. To be a good citizen is to work together and bear responsi-
bility for the public sphere and for the institutions that shape social life.
Boyte’s concept of “public work,” a sophisticated current embodiment of
populist political theory, views people as co-creators of their shared envi-
ronment linked by ties of civic responsibility that emerge from collective
work taking place in free spaces.50 Citizens working together can build
a better commonwealth as people develop and contribute skills such as
organizing capabilities and trade and craft abilities to common projects.
Not merely an antielite protest movement, American populism has given
rise to credit unions, cooperative markets, and insurance networks, and it
has reshaped public spaces and formal political institutions at the local,
state, and national levels.
Linked to their conception of constructive citizenship, many popu-
lists have viewed government not as an enemy or as an all-providing
parent but as an ally in the larger project of building a commonwealth.
Indeed, good government itself is seen as part of the people’s histori-
cal project. As one citizen activist recently stated, “This idea of get gov-
ernment out of my life—I don’t know how that works. Because we’re
supposed to be a government of the people, by the people, and for the
people. So how do I just take government out of my life? I am govern-
ment!”51 These constructive strands of populist ideology stressing com-
munity self-reliance, self-governance, and co-ownership of institutional
and public spaces have allowed it to appeal to citizens across traditional
Left/Right divisions.
The practical ontology of populism confounds scholars who, failing to
perceive precise meanings of “the people” in the rhetoric, find it philosophi-
cally quaint and politically naive. As Margaret Canovan has noted, even par-
ticipatory democratic theory has tended to steer clear of populism and the
closely connected concept of popular sovereignty.52 The slippery nature of
“the people” is part of the problem: while “this sovereign people is clearly
JSP 24.4_04_Dzur.indd 368 02/04/11 12:00 PM

not a practical body exercising legal sovereignty like the Roman populous or
the Athenian demos, it cannot be pushed entirely into limbo as a legitimat-
ing abstraction.”53 Once the emphasis on active, collaborative, responsible
citizenship is realized, though, the people who occupy this middle ground
between constant active agent and mere abstraction become more evi-
dent. They are the ones working with you to build the playground; they are
present at the school board meeting, listening, taking notes, asking ques-
tions; they helped clear branches off the roads after last winter’s ice storm.
Defining the people is as much a matter of civic action, in other words, as a
matter of scholarship; to see them it helps to have worked with them.
It is tempting to say that contemporary populist movements like the
three strikes reform efforts in California are problematic simply because
they seek direct public impact on policy or because their rhetoric contains
reactionary elements. These claims are true, but they distract from the
deeper problem that such movements lack the constructive, self-organizing,
self-reliant, institution-shaping elements of the best populist efforts of the
past and present. Reflecting the growing professionalization and central-
ization in political networks and formal party politics in the late 1960s and
early 1970s, grassroots protest politics took up strategies of mobilization
rather than organization. Mobilization strategies, in the forms of signature
drives, door-to-door canvassing operations, or protest marches, are potent
but toxic. As Boyte points out, “They expect very little of the citizen; they
depend upon caricatures of the enemy; and they are forms of citizen par-
ticipation in which professionals craft both the message and the patterns
of involvement.”54 Organizing strategies, by contrast, stress “patient, sus-
tained work in communities,” “face to face horizontal interactions among
people,” and “respect for the intelligence and talents of ordinary, uncreden-
tialed citizens.”55
This multifaceted analysis of populism makes clear that the dissatisfac-
tion with government and skepticism about political and social elites can be
part of a larger, constructive movement that leads to a widespread and ongo-
ing sense of civic ownership and public responsibility. Canovan has written
that populism is a “shadow of democracy,” that it emerges out of a conflict
between “two faces” of democracy. The pragmatic side emphasizes democ-
racy as “coping peacefully with the conflicts of modern societies,” through
a specific set of institutions such as multiparty electoral systems, while the
redemptive side holds the people rather than a set of institutions as the source
of legitimacy and promises a kind of salvation through political action.56
JSP 24.4_04_Dzur.indd 369 02/04/11 12:00 PM

370 albert w. dzur
Though “democracy cannot in fact function without alienating institutions

and professional expertise,” writes Canovan, “it could also be argued that
(like routinized religious institutions in Weber’s analysis) democratic
institutions need an occasional upsurge of faith as a means of renewal.”57
If Canovan is right that the tension between these two faces of democracy
is what helps foster populist movements, then dissatisfaction and distrust
might, under opportune circumstances, become redemptive not destructive,
leading to a sense of ownership, not further distrust and alienation.
To help clarify these differences, even at the risk of overschematizing
what are complex movements rooted in specific times, places, and mem-
berships, consider the series of distinctions between what I will call “thin”
and “thick” populism in Table 1. These distinctions allow us to bring popu-
lism out of the shadows, as it were, to see some forms as potentially positive
efforts to rejuvenate democratic institutions. To do this, one must be criti-
cal of thin populism, as the theorists of penal populism have been, while
not giving up on the potential that even these dysfunctional movements
may have for thickening and becoming more constructive. One can chas-
tise three strikes proponents and, more recently, tea party activists for their
“blanket distrust of institutions” and “astonishing—and unwarranted—
confidence in the self” while still recognizing that a polity without public
engagement is much worse off.58 A turn to expert deference and insulation
table 1. Two Kinds of Populism

Thin Populism Thick Populism
Intrusive and coercive Potential ally, public proj-

View of Government
force to be minimized ect, commonwealth
Ambivalence, open to
Attitude toward Experts Distrust
collaboration
Mode of Operation Mobilization Organization
Policy or leadership Institutional reform, civic

Goals
change capacity building
Time Horizon Short-term Long-term
Social Matrix Homogeneous Heterogeneous

Faith in individuals left Faith in individuals work-
Political Theory
alone ing together
JSP 24.4_04_Dzur.indd 370 02/04/11 12:00 PM

devices risks giving up on any thickening while at the same time nurturing
the next cycle of thin populist revolt.59
4. Contrasting Images of the Public in Restorative Justice
It might be suggested that “thick populism,” this more constructive form

of popular action, is somewhat utopian, given the impact of three strikes
and other victims’ rights movements in the last decade. Yet such an ideal,
in contrast to the image of the vengeful public common among critics of
penal populism, is found among those advocating a “restorative” approach
to criminal justice. They argue that mainstream adversarial courtroom
practice and the overutilization of incarceration as punishment have led to
a fundamentally alienating process that neither satisfies victims’ sense that
justice has been done nor holds convicted offenders to account in a way
that allows them to make things right. Restorative justice pioneer Howard
Zehr urged court professionals and citizens alike to “change lenses,” to see
crime not simply as an offense against the state but as a harm to real people
in actual communities and to reform the adversarial approach leading to
retributive punishment if a defendant is proved guilty so that it becomes a
more communicative process that restores lost dignity and property to the
victim, establishes networks of support for the offender, and seeks, where
possible and desirable, the forgiveness of the victim.60
What is important for our purposes is that Zehr and other restorative
justice advocates posit the public not as a hindrance or threat to this pro-
cess of forgiveness, something to be contained by experts in restorative
justice or by barriers between restorative justice forums and the restless,
vengeful public. Rather, they value public participation as a constitutive ele-
ment that contributes to the core purposes of restorative justice. Lay citizen
involvement is seen as an asset to the process itself, an integral part of the
framework that helps foster the right kind of dialogue, and essential for
building a network of support for restorative justice programs in the larger
social world.61
Consider John Braithwaite’s influential model, based on the Austra-
lian experience of family-group conferencing, in which victims, offenders,
their family and friends, and representatives from their community all
engage in a dialogue facilitated by a trained, but not expert or professional,
moderator. Critical for this process is that dialogue be undominated, that
JSP 24.4_04_Dzur.indd 371 02/04/11 12:00 PM

372 albert w. dzur
all voices are heard, that the experience of the harm be articulated clearly
and concretely, and that an opportunity for making up for the harm
through apology or restitution, for example, be created. Sharing of expe-
rience, reprobation, and reintegration are three core components in the
process, and for each lay participants are an asset. Supporters and volun-
teer facilitators encourage parties to open up about an event, to explain
reasons for an action, to reveal its short- and long-term consequences.
Members of the lay public are even more important for reprobation and
reintegration, since they do more than symbolize “the public” but are
actually members of the particular public sphere that victims and offend-
ers will rejoin after the forum. “It is not the shame of police or judges or
newspapers that is most able to get through to us,” notes Braithwaite, “it
is shame in the eyes of those we respect and trust.”62 Reintegration efforts
are also advanced by members of the public, through “gestures of reac-
ceptance into the community of law-abiding citizens” such as “a simple
smile expressing forgiveness and love” or “formal ceremonies to decertify
the offender as deviant.”63
Restorative justice advocates are far from naive about public attitudes
toward crime and offenders and insist on procedural elements that ensure
that the process leads toward restorative goals. Yet, at the same time, the
participatory element is critically important: they see forums as ideally
transformative of the victim’s and offender’s attitudes toward the offense,
as well as the public’s view of criminal justice. “Experience is the best
educator,” according to Braithwaite, “more so the more nuanced the skills
required. We hope that citizens are learning in conferences and circles
how to deliberate respectfully in the face of the greatest provocations of
daily life.”64
Support for the restorative justice view of public participation in
criminal justice is found in procedural justice and related public opinion
research. A number of these studies show that public attitudes are more
complicated and less punitive than movements like three strikes would
suggest. Respectful and inclusive dialogue that takes participants’ views
seriously and allows them to learn more about offenders helps people see
beyond offenders as others and mentally reintegrate them into the human
family.65 When the context of offenses is made evident and detailed
descriptions of offenders are provided, survey respondents tend to be
more moderate in their choices of appropriate punishment than when
JSP 24.4_04_Dzur.indd 372 02/04/11 12:00 PM

little context and few descriptions are provided.66 Attitudes can become
more nuanced even after a weekend of deliberation, as James Fishkin
reports from his experience convening a weekend forum involving 301
participants, in which criminal justice policy was debated in small groups
and brought forward in large-group dialogue with experts and govern-
ment officials. By the end of the weekend, attitudes toward punishment
had shifted notably away from “get tough” policies.67
What separates restorative justice from penal populist visions of the
public is not just a more balanced view of public opinion; it is an under-
standing of the ways participatory institutions can facilitate the kind of
thick populism that has value for American democracy and discourage
the thin sort that does not. The right kinds of criminal justice institutions
do not block or dampen public participation; they incorporate it so that
ordinary citizens are brought face-to-face with hard questions and real
suffering human beings, so that they share responsibility for the outcome,
whatever it is. Zehr puts this point in one compact sentence: “Restor-
ative justice is constructed upon three simple elements or pillars: harms
and related needs (of victims, first of all, but also of the communities and
the offenders); obligations that have resulted from (and given rise to) this
harm (the offenders’, but also the communities’); and engagement of those
who have a legitimate interest or stake in the offense and its resolution
(victims, offenders, and community members).”68 In restorative justice
programs, citizen participation is encouraged, but it is not allowed to be
solipsistic, self-interested, or hasty. Volunteer facilitators, supporters, and
others take up specific obligations related to the particular suffering indi-
viduals before the forum. These citizens are there for their capacity for
judgment but also for their ongoing ability to share responsibility for shap-
ing future patterns of less harmful social interaction. From start to finish,
restorative justice institutions close social distances between offenders
and victims and between the people who commit offenses and the people
who live near them and will still live near them when they are done mak-
ing amends. At root, restorative justice promotes a thick populist vision of
civic capacity building that stresses our “interconnectedness,” the “web of
relationships” that link us together in the tasks that generate and regener-
ate our public world: “When this web is disrupted,” writes Zehr, “we are
all affected. The primary elements of restorative justice—harm and need,
obligation, and participation—derive from this vision.”69
JSP 24.4_04_Dzur.indd 373 02/04/11 12:00 PM

374 albert w. dzur
Conclusion: Citizen Action in the Renovation of Criminal Justice

Institutions
The kind of participatory community forum found in many restorative

justice programs is, in my view, worth much closer attention from
democratic theorists as an alternative mode of approaching American
hyperincarceration. Also deserving greater analysis is the place of the
criminal jury, an institution traditionally seen as a check on state punish-
ment precisely because it was composed of lay members.70 Both the decline
of this institution and the contemporary efforts to revive it and to add to
its powers—by allowing juror questions for witnesses, by discouraging the
use of plea bargaining, and by permitting a wider role of juries in the pro-
cess of sentencing—are vital topics in this respect.
A hundred years ago populist writer G. K. Chesterton wrote vividly
about his experience serving on a jury. Beginning in a lighthearted spirit of
good humor, he jokes about all the “C” surnames surrounding him in the
jury pool, and he spoofs the pompous conventions of the law. But then he
sobers up when facing the defendants brought before the court:
The mood cannot even inadequately be suggested, except faintly by this

statement that tragedy is the highest expression of the infinite value of
human life. Never had I stood so close to pain; and never so far away from
pessimism. Ordinarily, I should not have spoken of these dark emotions
at all, for speech about them is too difficult. . . . I speak of these feel-
ings because out of the furnace of them came a curious realization of
a political or social truth. I saw with a queer and indescribable kind of
clearness what a jury really is, and why we must never let it go.71
Chesterton’s main point, that the jury allows “fresh blood and fresh
thoughts from the streets” to infuse courtrooms that otherwise become
the mundane “workshops” of court professionals who have gotten all too
accustomed to the job, is well known.72 Equally important, I think, is its
underappreciated flip side, namely, that the jury allows, indeed, presses,
ordinary citizens to take ownership of the “terrible business” of criminal
justice. To do the job of the juror one must shift from the carefree conceits
of everyday life to conduct the public work of judgment. He is saying not
just that lay citizens do this job better but also that it is somehow evidence
of moral weakness to turn it over to court professionals. In a democracy,
JSP 24.4_04_Dzur.indd 374 02/04/11 12:00 PM

citizens are not ever left off the hook of moral and political responsibility
for punishment.
The democratic logic of criminal justice I have addressed in this essay
points to the greater awareness of such public obligation. In our time of
fluid late modernity, institutions like restorative justice forums and a revi-
talized jury system must be found to provoke and sustain a sobriety about
punishment that has been missing for a generation.
notes
1. Nils Christie, A Suitable Amount of Crime (New York: Routledge, 2004),
114–16.
2. Nicola Lacey, The Prisoners’ Dilemma: Political Economy and Punishment in
Contemporary Democracies (Cambridge: Cambridge University Press, 2008), 120.
3. For analysis of why anti-incarceration social movements have failed to
gain much ground in the United States, see Marc Mauer, “The Causes and
Consequences of Prison Growth in the United States,” Punishment and Society 3
(2001): 17. For further details on both the barriers and some potential resources
for an effective movement, see Marie Gottschalk, “Dollars, Sense, and Penal
Reform: Social Movements and the Future of the Carceral State,” Social Research
74 (2007): 669–94.
4. “Far from serving as a model for the world, contemporary America is widely
viewed with horror,” James Q. Whitman writes (“What Happened to Tocqueville’s
America,” Social Research 74 [2007]: 252).
5. Lacey writes that normative theory “has been curiously impoverished in
terms of explicit discussion of the relationship between criminal justice and
democracy” (Prisoners’ Dilemma, 7).
6. Anthony Bottoms, “The Philosophy and Politics of Punishment and
Sentencing,” in The Politics of Sentencing Reform, ed. C. Clark and R. Morgan
(Oxford: Clarendon Press, 1995), 40. Note that Bottoms is careful to say that
populist punitiveness is not public opinion regarding criminals and criminal
offenses. He notes that public opinion surveys done crudely support punitive
sanctions but more nuanced responses are found when survey questions contain
more concrete details. In his view, “populist” signifies top-down mobilization and
utilization of only one dimension of public attitudes.
7. See John Pratt, Penal Populism (London: Routledge, 2007). Bottoms provided
the kernel of this sociopolitical analysis by pointing to the “disembedding processes
of modernity” that have “led to a fairly widespread sense of insecurity,” which, in
turn, has not been adequately addressed by the “abstract systems on which people
are expected to rely” (“Philosophy and Politics of Punishment and Sentencing,” 47).
8. Members of the public increasingly recognize that “the established political
class is no longer able to resolve the most basic problems, [and] that politicians
JSP 24.4_04_Dzur.indd 375 02/04/11 12:00 PM

376 albert w. dzur
generally are too absorbed with themselves to be able to adapt to a rapidly

changing world” (H. G. Betz, quoted in Pratt, Penal Populism, 55).
9. See Russell J. Dalton, “The Social Transformation of Trust in Government,”
International Review of Sociology 15 (2005): 133–54.
10. Robert D. Putnam, Bowling Alone: The Collapse and Revival of American
Community (New York: Simon and Schuster, 2000), 47.
11. Ian Loader, “Fall of the ‘Platonic Guardians’: Liberalism, Criminology, and
Political Responses to Crime in England and Wales,” British Journal of Criminology
46 (2006): 561–86.
12. Mike Hough and Julian V. Roberts, Confidence in Criminal Justice: An
International Review, ICPR Research Paper no. 3 (London: Kings
College, 2004), 30.
13. Pratt, Penal Populism, 3.
14. Tom R. Tyler and Robert J. Boeckmann, “Three Strikes and You Are Out, but
Why? The Psychology of Public Support for Punishing Rule Breakers,” Law and
Society Review 31 (1997): 237–65.
15. Richard Sparks puts it well when he writes about the “particular emotional
economy of punishment in the culture and politics of our own time—the
affluent, agitated, self-absorbed world of late-modernity” (“States of Insecurity:
Punishment, Populism, and Contemporary Political Culture,” in The Use of
Punishment, ed. Sean McConville [Portland, Oreg.: Willan, 2003], 152). See also
Albert W. Dzur and Rekha Mirchandani, “Punishment and Democracy: The Role
of Public Deliberation,” Punishment and Society 9 (2007): 151–75.
16. Arie Freiberg, “Affective versus Effective Justice: Instrumentalism and
Emotionalism in Criminal Justice,” Punishment and Society 3 (2001): 266.
17. See, e.g., Loïc Wacquant, Punishing the Poor (Durham: Duke
University Press, 2009).
18. Vlae Kershner, “State Senate Approves ‘3 Strikes’ by Big Margin,”
San Francisco Chronicle, March 4, 1994.
19. Franklin E. Zimring, Gordon Hawkins, and Sam Kamin, Punishment and
Democracy: Three Strikes and You’re Out in California (New York: Oxford University
Press, 2001), 231.
20. Ibid.
21. Ibid., 11.
22. The New York Times reported that as late as Thanksgiving, 1993, the
Reynolds’s petition “lagged far behind the 385,000 signatures needed to put it
before the voters.” It was only after Polly Klaas’s body had been found that support
exploded for the petition: “Within a few weeks, more than 300,000 signatures
were gathered.” Jane Gross, “Drive to Keep Repeat Felons Gains in California,”
New York Times, December 26, 1993.
23. Ibid.
24. Vlae Kershner, “Three Strikes’ Signed into California Law,” San Francisco
Chronicle, March 8, 1994. See also Franklin E. Zimring, “Populism, Democratic
JSP 24.4_04_Dzur.indd 376 02/04/11 12:00 PM

Government, and the Decline of Expert Authority: Some Reflections on ‘Three

Strikes’ in California,” Pacific Law Journal 28 (1996): 248.
25. Ray Surette, “News from Nowhere, Policy to Follow: Media and the Social
Construction of ‘Three Strikes and You’re Out,’” in Three Strikes and You’re Out:
Vengeance as Public Policy, ed. D. Shichor and D. Sechrest (Thousand Oaks: Sage
Publications, 1999), 188.
26. Michael Tonry, “Why Are U.S. Incarceration Rates So High?” Crime and
Delinquency 45 (1999): 428.
27. A. J. Skillen, “How to Say Things with Walls,” Philosophy 55 (1980): 509–23.
29. Zimring et al., Punishment and Democracy, 204.
30. Lacey, Prisoners’ Dilemma, 192; Zimring et al., Punishment and Democracy,
214; Philip Pettit, “Depoliticizing Democracy,” Ratio Juris 17 (2004): 55.
31. Philip Pettit, “Is Criminal Justice Politically Feasible?” Buffalo Criminal Law
Review 5 (2002): 442.
32. Zimring et al., Punishment and Democracy, 214.
33. See, e.g., John R. Sutton, “The Political Economy of Imprisonment in
Affluent Western Democracies, 1960–1990,” American Sociological Review
69 (2004): 170–89; Lacey, Prisoners’ Dilemma; Michael Tonry, “Determinants of
Penal Policies,” in Crime and Justice, vol. 36: Crime, Punishment, and Politics in
Comparative Perspective, ed. Michael Tonry (London: University of Chicago Press,
2007), 1–48.
34. Cheryl M. Webster and Anthony N. Doob, “Punitive Trends and Stable
Imprisonment Rates in Canada,” in Tonry, Crime and Justice, 341–42.
35. Ibid., 342.
37. David A. Green, “Comparing Penal Cultures: Child-on-Child Homicide in
England and Norway,” in Tonry, Crime and Justice, 591–643.
38. Tapio Lappi-Sepala, “Penal Policy in Scandinavia,” in Tonry, Crime and
Justice, 271.
39. See Zimring et al., Punishment and Democracy; and Pratt, Penal Populism.
40. As Loader and Sparks put it in their excellent discussion of these
“insulationist” models: “Criminological politics remains, and has to be, a
conversation among elites.” We are left, “prematurely,” “with little alternative but
to seek refuge in bureaucratic authority and professional expertise.” Ian Loader
and Richard Sparks, Public Criminology? (New York: Routledge, 2011), 113.
41. See Tony Judt, Ill Fares the Land (New York: Penguin, 2010), chaps. 1 and 3.
42. David A. Green rightly points out that the depoliticized expert strategy
“entails high risks in part because the legitimacy of the criminal justice system
is jeopardized once such policies are exposed,” as in the notorious Willie Horton
case in Massachusetts that “exposed the weaknesses of the state’s progressive
furlough system for life-sentenced prisoners” (“Feeding Wolves: Punitiveness and
Culture,” European Journal of Criminology 6 [2009]: 529).
JSP 24.4_04_Dzur.indd 377 02/04/11 12:00 PM

378 albert w. dzur
43. It is noteworthy that the Willie Horton case was dredged up by presidential
candidate Al Gore for ammunition in his primary challenge to Michael Dukakis
and then used even more effectively by George Bush in the general election
campaign. This suggests that as long as there are competitive elections and public
fear of crime, such expert decisions will have the potential to backfire in a risky
way on accountable parties.
44. Lacey, Prisoners’ Dilemma, 196n39.
45. Pettit, “Is Criminal Justice Politically Feasible?” 448–49.
46. Putnam, Bowling Alone.
47. Roger Matthews, “The Myth of Punitiveness,” Theoretical Criminology 9
(2005): 188.
48. Harry C. Boyte, Everyday Politics: Reconnecting Citizens and Public Life
(Philadelphia: University of Pennsylvania Press, 2004), 19.
49. Ibid., 20.
50. See Harry C. Boyte, “Populism and John Dewey: Convergences and
Contradictions,” University of Michigan Dewey Lecture, Ann Arbor, 2007.
51. Bill Moyers Journal, PBS, April 30, 2010, http://www.pbs.org/moyers/
journal/04302010/transcript5.html.
52. Margaret Canovan, “Trust the People! Populism and the Two Faces of
Democracy,” Political Studies 47 (1999): 2–16; Margaret Canovan, “Populism for
Political Theorists,” Journal of Political Ideologies 9 (2004): 241–52.
53. Margaret Canovan, The People (London: Polity, 2005), 93.
54. Boyte, Everyday Politics, 26.
55. Ibid., 35.
56. Canovan, “Trust the People!” 10.
57. Ibid., 14.
58. Mark Lilla, “The Tea Party Jacobins,” New York Review of Books, May 27, 2010.
59. From the participatory democratic perspective I hold, the problem with three
strikes is not popular action, it is superficial and fleeting popular action. Insulated
experts and a culture of deference assure that popular action never becomes
anything but superficial and fleeting. Participatory democrats might best focus
their critique of three strikes activism not on the signature drive or the ballot
campaign but on the short time horizon of the movement, its lack of long-term
commitment and prolonged attention to public safety and to the consequences of
the policy.
60. Howard Zehr, Changing Lenses: A New Focus for Crime and Justice
(Scottdale, Pa.: Herald Press, 1990).
61. Albert W. Dzur, Democratic Professionalism: Citizen Participation and the
Reconstruction of Professional Ethics, Identity, and Practice (University Park:
Pennsylvania State University Press, 2008), chap. 6; and Albert W. Dzur,
“Restorative Justice and Democracy: Fostering Public Accountability for Criminal
Justice,” Contemporary Justice Review, forthcoming.
JSP 24.4_04_Dzur.indd 378 02/04/11 12:00 PM

62. John Braithwaite, “Restorative Justice: Assessing Optimistic and Pessimistic

Accounts,” Crime and Justice 25 (1999): 40.
63. John Braithwaite, Crime, Shame, and Reintegration (Cambridge: Cambridge
University Press, 1989), 55.
64. John Braithwaite, Restorative Justice and Responsive Regulation (Oxford: Oxford
University Press, 2002), 132.
65. See Freiberg, “Affective versus Effective Justice,” for a review of this research.
66. John Doble, “Attitudes to Punishment in the US—Punitive and Liberal
Opinions,” in Changing Attitudes to Punishment, ed. J. Roberts and M. Hough
(Portland, Oreg.: Willan, 2002); J. Roberts, L. Stalans, D. Indermaur, and
M. Hough, Penal Populism and Public Opinion: Lessons from Five Counties (Oxford:
Oxford University Press, 2003).
67. For example, before the weekend’s deliberation 59 percent thought that
incarceration was either “very effective” or “effective” in reducing crime.
Afterward, only 42 percent held these views. See J. S. Fishkin, The Voice of the
People: Public Opinion and Democracy (New Haven: Yale University Press, 1995);
M. Hough and A. Park, “How Malleable Are Attitudes to Crime and Punishment?
Findings from a British Deliberative Poll,” in Roberts and Hough, Changing
Attitudes to Punishment, 163–83.
68. Howard Zehr, The Little Book of Restorative Justice (Intercourse, Pa.: Good
Books, 2002), 24; italics in original.
69. Ibid., 35.
70. Albert W. Dzur, “Democracy’s ‘Free School’: Tocqueville and Lieber on the
Value of the Jury,” Political Theory 38 (2010): 603–30.
71. G. K. Chesterton, “The Twelve Men,” in Tremendous Trifles (London: Methuen,
1909), 65; my italics.
72. Ibid., 67–68.
JSP 24.4_04_Dzur.indd 379 02/04/11 12:00 PM

Dzur EUA AWD2

Uploaded by

Copyright:

Available Formats

You might also like

Dzur EUA AWD2

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Dzur EUA AWD2

Uploaded by

Copyright:

Available Formats

The Myth of Penal Populism: Democracy, Citizen Participation, and American

journal of speculative philosophy, vol. 24, no. 4, 2010

JSP 24.4_04_Dzur.indd 354 02/04/11 12:00 PM

1. Too Much Democracy

The Penal Populism Thesis

JSP 24.4_04_Dzur.indd 355 02/04/11 12:00 PM

offenses, Bottoms described populist punitiveness as “politicians tapping

JSP 24.4_04_Dzur.indd 356 02/04/11 12:00 PM

have gained momentum outside formal channels within government

JSP 24.4_04_Dzur.indd 357 02/04/11 12:00 PM

more rigid the popular perceptions of criminal offenders as unreachable

Penal Populism in Practice: Three Strikes in California

JSP 24.4_04_Dzur.indd 358 02/04/11 12:00 PM

JSP 24.4_04_Dzur.indd 359 02/04/11 12:00 PM

2. Bringing the Experts Back In: The Technocratic Response to

In response to what they see as the democratic dysfunctions of populist puni-

Depoliticizing Democracy and Reprofessionalizing Criminal Justice

JSP 24.4_04_Dzur.indd 360 02/04/11 12:00 PM

on criminal justice decision making. They draw on the example of how

JSP 24.4_04_Dzur.indd 361 02/04/11 12:00 PM

set general sentencing guidelines, but these would be applied by judges

JSP 24.4_04_Dzur.indd 362 02/04/11 12:00 PM

evidenced by well-worn sayings like “If it bleeds, it leads” and grade-school

Practical and Normative Problems with Exclusion and

JSP 24.4_04_Dzur.indd 363 02/04/11 12:00 PM

inﬂuxes of political capital. Bridges to the mediated and technocratic world

JSP 24.4_04_Dzur.indd 364 02/04/11 12:00 PM

about whether the institutionalization of exclusion and deference would

JSP 24.4_04_Dzur.indd 365 02/04/11 12:00 PM

3. Recasting the Meanings of Populism

Too Little Democracy

JSP 24.4_04_Dzur.indd 366 02/04/11 12:00 PM

JSP 24.4_04_Dzur.indd 367 02/04/11 12:00 PM

JSP 24.4_04_Dzur.indd 368 02/04/11 12:00 PM

JSP 24.4_04_Dzur.indd 369 02/04/11 12:00 PM

Though “democracy cannot in fact function without alienating institutions

table 1. Two Kinds of Populism

Intrusive and coercive Potential ally, public proj-

Policy or leadership Institutional reform, civic

Time Horizon Short-term Long-term

Social Matrix Homogeneous Heterogeneous

JSP 24.4_04_Dzur.indd 370 02/04/11 12:00 PM

4. Contrasting Images of the Public in Restorative Justice

It might be suggested that “thick populism,” this more constructive form

JSP 24.4_04_Dzur.indd 371 02/04/11 12:00 PM

JSP 24.4_04_Dzur.indd 372 02/04/11 12:00 PM

JSP 24.4_04_Dzur.indd 373 02/04/11 12:00 PM

Conclusion: Citizen Action in the Renovation of Criminal Justice

The kind of participatory community forum found in many restorative

The mood cannot even inadequately be suggested, except faintly by this

JSP 24.4_04_Dzur.indd 374 02/04/11 12:00 PM

JSP 24.4_04_Dzur.indd 375 02/04/11 12:00 PM

generally are too absorbed with themselves to be able to adapt to a rapidly

JSP 24.4_04_Dzur.indd 376 02/04/11 12:00 PM

Government, and the Decline of Expert Authority: Some Reﬂections on ‘Three

JSP 24.4_04_Dzur.indd 377 02/04/11 12:00 PM

JSP 24.4_04_Dzur.indd 378 02/04/11 12:00 PM

62. John Braithwaite, “Restorative Justice: Assessing Optimistic and Pessimistic