Contrasts in tolerance? Making sense of differences in European

Prison Rates

David Nelken

Introduction

• Social factors and Legal variables

• External and internal legal culture

• Comparing systems: Similarities and Differences

The punitive turn

• America as Dystopia - Europe as Utopia?

Making sense of differences in Prison rates

• How UN data on comparative prison rates are used as evidence for arguments about punitiveness and tolerance and/or as artifacts for local struggles

• Prison rates are not related to crime rates or public views about severity in sentencing. So what explains them?

External factor explanations

• Political economy- and politics- are the explanation of differences in prison rates (see eg Cavadino and Dignan/ Lacey/ Downes)

NEO-LIBERAL COUNTRIESUSA 738NEW ZEALAND 186 ENGLAND AND WALES 148 AUSTRALIA 126 CONSERVATIVE CORPORATIST COUNTRIESITALY 100GERMANY 95NETHERLANDS 128FRANCE 85

SOCIAL DEMOCRACIESSWEDEN 82FINLAND 75

ORIENTAL CORPORATISMJAPAN 62

Table 1: Selective prison rates 2005/6

Three issues needing more study

1 What can prison rates really tell us?

2 How are such rates shaped by criminal procedure?

3 Do punitiveness and tolerance have the same meaning cross - culturally

1.What can prison rates tell us

• Are crime rates the same in the countries being compared? If yes, why? If not, are we really explaining differences in punitiveness?

• Snapshots can mislead? How can we explain the volatility in prison rates?

2. What is the role of criminal procedure ?

• Prison rates are an outcome of criminal justice decisions

• Italy as an example- three stages of judgement; Delay and ‘prescription’

• Not just Italy: Low prison rates elsewhere also often ‘achieved’ through attrition.

• Is criminal procedure just part of the ‘how -or also of the ‘why’? The autonomy of the ‘legal’ or of the ‘ platonic guardians’

3. Cross- cultural and inter- cultural differences in what is considered

punitiveness or ‘tolerance’

• Intentions or outcomes ?

• Contested and Changing Local terms:

• Gedoken

• Buonismo/ Perdonismo

• Garanzie Pelosi

Conclusion: Engaging with local legal actors

• Rather than imposing the meaning of punitiveness and tolerance cross- culturally their local sense needs to be recovered

• Can offending young people be trusted to go straight?

• Can immigrants without homes and work be given the beneft of the doubt?

Comparison- Evil causes evil?

• Is more prison always bad - and less prison good?

• Is it always the result of other ‘bad’ things. (Even in the USA high prison rates can also be the intended or unintended outcome of otherwise ‘good’ initiatives) .