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

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 simile. 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 institutions, 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 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 justice 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, individual liberty, political freedom. This everyday hypocrisy is not lost on foreign observers, who increasingly understand American-style democracy as something to be avoided rather than emulated.⁴

The implications of hyperincarceration for understanding contemporary 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 ability of the public to punish fairly and humanely.⁵ These sophisticated and often well-justified arguments, which I will term the "penal populism thesis," provide important insights into the political context and offer potential 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 culprit 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 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, underemployment, and threadbare welfare safety nets characteristic of modern neoliberal polities. Political entrepreneurs use the...