Democracy and punishment: A radical view

Introduction

What role should the public play in criminal justice policymaking? More specifically, what role should the public play in the making of criminal justice policy in the United States, where, according to most accounts, public demands for harsh punishment helped to fuel one of the largest projects of carceral expansion in modern history?

In the interests of penal moderation, some criminologists and sociologists of punishment have argued for the ‘bureaucratic insulation’ of criminal justice policymaking on the theory that democratic pressures will nearly always push in the direction of penal severity and rarely, if ever, in the opposite direction. Against this view, other scholars have made the case for a deliberative-democratic approach to criminal justice policymaking, which would not only permit but encourage the input of ordinary citizens. These scholars concede that highly populist forms of governance tend to produce punitive criminal justice policy outcomes, but contend that more deliberative modes of criminal justice policymaking would be—or at least could be—conducive to moderate rates of punishment.

Thus far, this debate has mostly centered on the question of whether or not moderate rates of punishment can be achieved through political institutions that are responsive to democratic pressures. It is not obvious, however, why the degree to which we entrust criminal justice policymaking to the democratic process should depend solely or even mainly upon whether or not the results of doing so accord with preferences for penal moderation. Indeed, the question of what is acceptably moderate or overly punitive is open to debate (Jacobs, 2001).

Operating on the assumption that criminal justice policies should be evaluated on utilitarian grounds, some criminologists have concluded that ordinary citizens are either insufficiently interested or competent to perform the kind of cost–benefit analysis necessary to make sensible judgments about criminal justice policies. As David Garland has recently observed, however, this concern may be very much beside the point. ¹ He suggests that ordinary citizens may be much more concerned about whether punishment ‘rights wrongs’ than they are about whether it functions as an effective device for controlling crime (Garland, 2009: 10). And, lest a populist concern with righting wrongs simply be chalked up to a lack of sophistication on the part of ordinary citizens, we should bear in mind that it is a concern shared by a number of prominent philosophers, including liberal philosophers of punishment like J.G. Murphy and Douglas Husak. It is conceivable, then, that differences of opinion between experts and ordinary citizens about how to control crime and punish offenders may be, in part at least, the consequence of legitimate disagreements over the purposes of punishment, rather than of different capacities to rationally evaluate the efficacy of criminal justice policies.

And if there are legitimate differences of opinion between criminal justice policy experts and citizens, it is not at all clear why—in a democratic society—these differences ought to be resolved in favor of the experts. The basic idea of democracy, after all, is that citizens should collectively decide how they will be governed (Cohen, 1998).

This article takes this principle seriously by exploring the potential of evaluating criminal justice policies on the basis of whether or not they are democratically legitimate. Yet, while this article operates from the modest premise that a society’s laws and policies should, in general, be the product of the ‘public will’, it also recognizes that there may be instances when the public is too incompetent, too uninterested, or too prejudiced to be entrusted with power over a particular area of law or policy. While the standard for whether or not, or to what degree, ordinary citizens have input into the making of criminal justice policy should not simply be whether such input lines up with expert opinion, we should nevertheless want to know, or have good cause to think, that citizens are at least willing and able to listen to, and critically reflect upon, different facts, ideas, and arguments about criminal justice policy. In the end, citizens may disagree with the experts, but their disagreement should not be arbitrary (Estlund, 2000).

Thus, while the ultimate aim of this article will be to offer an argument about the requirements for democratically legitimate criminal justice policies, it will be necessary, first, to address whether meaningful democratic engagement on criminal justice issues is a sufficiently realistic possibility, such that an inquiry into the question of democratic legitimacy is worth taking up. ² This article begins, then, by discussing two claims that each, and especially taken together, suggest that meaningful engagement on criminal justice issues is not possible. One claim is that hostility toward criminal offenders is a social constant. The other claim is that citizens, at least in the United States, are indifferent toward the human rights of offenders.

This article calls both of these claims into question. With respect to the idea that hostility toward offenders is a social constant, the article points to public opinion poll results which indicate that public opinion in the United States has become considerably less punitive in recent years. More importantly, it also points to focus group research and deliberative poll experiments which show that citizens tend to adjust their views on criminal justice issues—often in a less punitive direction—when they have had opportunities for critical reflection prior to formulating their views. While much more research on the mutability of citizen opinions and attitudes remains to be done, this evidence suggests that meaningful democratic engagement on criminal justice issues is possible. On the more difficult problem of indifference, this article raises the possibility that the public’s apparent lack of concern about the human rights of offenders may be the product of an impoverished political discourse.

This discussion lays the foundation for an inquiry into the conditions of democratically legitimate punishment. In taking up this inquiry, this article explores the prospect of evaluating criminal justice policies on the basis of how the policies are produced, not on the basis of whether or not they are desirable from a particular political or ideological viewpoint. The inquiry into democratic legitimacy, in other words, is principally concerned with process, not substantive outcomes (Habermas, 1990). This article, thus, does not address the familiar questions about how to achieve more efficacious, equitable, or substantively just criminal justice policies. As important as these questions are, they are analytically distinct from the question of democratic legitimacy. Moreover, it may not be possible to predict with any real degree of certainty which policies will emerge from different forms of democratic engagement, particularly from forms of democratic engagement which, like radical democracy, have never been fully realized. It is possible, and perhaps even likely, too, that policies we regard as democratically legitimate will not always be policies that we like. Sadly, ‘all good things do not necessarily go together’, and this much might well be true of democracy and the kinds of criminal justice policies that we regard to be good, fair, or just.

This article’s inquiry into the conditions of democratically legitimate criminal justice policy will begin with a critique of the view that policies should be regarded as democratically legitimate so long as they are the product of formal deliberative-democratic processes. Drawing on the insights of radical-democratic theory, the article’s central contention is that the legitimacy of criminal justice policies should be evaluated not only on the basis of how policies are deliberated on in state-sanctioned forums and other formal spaces of deliberation, but also on the basis of what is being said—and, perhaps much more importantly, what is not being said—in all of the various arenas of public discourse that together form what democratic theorists refer to as the ‘public sphere’ (Della Porta, 2005; Fraser, 1990; Habermas, 1962). A radical approach to ‘doing democracy’ also departs from the deliberative-democratic model insofar as: it sees conflict as an inevitable, and often desirable, feature of democratic politics, not as something to be minimized through ‘rational’ deliberation; it views the ‘emotional loading of public issues’ as a potentially positive force in clarifying political issues and problems, rather than a problem to be avoided; and it regards institutionalized deliberation as having the potential to produce ‘premature closure’ and ‘pseudo-consensus’, particularly in societies like the United States that are marked by high degrees of political and economic inequality (Ferree et al., 2002: 210–215, 222–228; Medearis, 2005).

The article’s analysis will focus primarily on the United States for two reasons. First, it is where the aim of penal moderation has been most elusive. Second, it is also where citizens have enjoyed the most influence on criminal justice policy. It is, in short, where the tension between penal moderation and democracy is most clearly on display.

Is meaningful democratic engagement on criminal justice issues possible?

Some scholars contend that entrusting criminal justice policymaking to citizens and their elected leaders is bound to have disastrous consequences. These scholars point to the United States, where offenders are punished at far greater rates and with far greater severity than in any other modern industrialized nation in the world. In fact, no country in the world, democratic or otherwise, incarcerates as many people, or a higher percentage of its population, than the United States does. And it has done so at a tremendous social and economic cost (Western, 2006).

According to a number of prominent scholars of crime and punishment, including Franklin Zimring, Michael Tonry, Nicola Lacey, and James Whitman, a big part of the reason why the United States is so much more punitive than other democracies is because its institutions of penal governance are uniquely vulnerable to public demands to ‘get tough’ on offenders. These scholars contend that Western European democracies have, by contrast, been able to maintain low rates of punishment, in large part, because they entrust criminal justice policymaking to bureaucracies that are highly insulated from public influence (Zimring and Johnson, 2006).

This empirical account lays the basis for a normative argument that criminal justice policies should be entrusted to bureaucratic elites and that the influence of ordinary citizens on criminal justice policymaking should be kept to a minimum. Zimring and his colleagues argue, for instance, that the United States Federal Reserve serves as a good model for how criminal justice policies should be made and administered. They suggest that, much like the Federal Reserve has been able to control rates of inflation since, in theory at least, it is insulated from political pressures to expand the money supply, a Fed-like bureaucracy of criminal justice policymaking would, likewise, be able to maintain low to moderate rates of punishment, since it would be insulated from public demands to ratchet up penalties for offenders (Zimring et al., 2001).

This way of thinking has encountered strong criticism. Ian Loader (2006: 582; see also Loader and Sparks, 2010: 777), for example, has argued that the goal of insulating policymaking from public opinion is ‘elitist’, ‘profoundly undemocratic’, and ‘undesirable as a contemporary political aspiration’. Loader’s characterization is partly right, of course. There is no question that the aim of minimizing the public’s influence on policymaking is elitist and undemocratic. Yet, whether or not it is undesirable as a political aspiration would seem to depend on whether elitism in this instance is warranted. ³

The key question would seem to be whether meaningful democratic engagement on criminal justice issues is possible. If it is not, then perhaps elitism is in order. The test of democratic engagement should not, of course, be whether or not citizens agree with the experts. After all, citizens may disagree with the experts on perfectly legitimate grounds. Moreover, if we were only willing to grant citizens the power to influence policy if they exercised it in a manner consistent with expert opinion, democracy would be a farce. At the same time, however, it is not clear why we would want to entrust a set of policies to the democratic process if citizens are not at least willing and able to consider evidence, ideas, and arguments that might prompt them to rethink their views. Without this type of engagement, democracy would consist of little more than a process of aggregating unreflective opinions or even prejudices.

With respect to some policies, perhaps the aggregation of unreflective opinions would not be such a terrible thing. Our criminal justice policies, however, authorize the State to punish, and punishment, it should always be remembered, involves agents of the State doing things to human beings that are ordinarily not permissible. The acts of arresting and incarcerating a person are violent acts, which, if they were not carried out under the authority of the State, would themselves constitute very serious violent crimes. Thus, whatever one’s standard for evaluating the justice of punishment happens to be, there is at least one basic principle upon which most people who are in the habit of thinking about punishment would probably agree: that is, simply put, that we should be very cautious about what we authorize the State to do in the name of criminal justice. Yet ordinary citizens can hardly be expected to exercise such care if, as proponents of bureaucratic insulation suggest, their opinions and attitudes about criminal justice are bounded either by hostility towards offenders or by an indifference toward their rights as human beings.

Zimring and his colleague David Johnson recently offered one of the clearest articulations yet of the view that the high rate and severity of criminal punishment in the United States are an outcome of too much democracy. Interestingly, Zimring and Johnson begin their argument by rejecting the commonly held assumption that public hostility toward criminal offenders suffices to explain why the United States punishes offenders more harshly and more often than other democracies do. While they do not deny that Americans are hostile in their attitudes toward criminal offenders, they contend that people everywhere—from Stockholm to Seoul—are hostile toward offenders (Zimring and Johnson, 2006: 269). In support of this claim, Zimring and Johnson (2006: 271) point to decades of cross-national survey data indicating agreement across a wide and diverse range of societies on the seriousness of the crime problem, perceptions of the criminal offender, notions about crime causation, and the leniency of the criminal justice system. Based on these data, they conclude that the antipathy that Americans express toward offenders is simply ‘normal behavior’ (2006: 270).

If Zimring and Johnson are right, then perhaps, as they argue, criminal justice policymaking should be insulated from public influence. While bureaucratic insulation would, as Loader contends, constitute a move away from democracy, it is not clear why democracy would be desirable if it merely functioned as a conduit for unreflective public hostility.

There is considerable evidence, however, which indicates that public views about crime and punishment are much more malleable and complex than what Zimring and Johnson suggest. Survey data in recent years have shown significant shifts in public opinion on a range of crime and punishment issues. In contrast to the 1980s and much of the 1990s, when public opinion polls consistently showed that the public only ever wanted to get ‘tougher’ on offenders, recent polls indicate that a majority of Americans consider the drug war a failure; favor the use of drug treatment over prison; and, more generally, want to see crime addressed by attacking its social roots rather than by relying on law enforcement (Jacobson, 2005: 96–98). If all of these positions were translated into policy change, it would represent a significant shift in how crime is controlled and punished in the United States.

The results of deliberative polling experiments and focus group research also indicate that people’s views on criminal justice issues are not only subject to change, but tend to soften or ‘liberalize’ after they have been given the opportunity to reflect on their views and engage with others in ‘rational-critical’ dialogue (Dzur and Mirchandani, 2007; Fishkin, 1995; Green, 2008; Hutton, 2005; Johnstone, 2000; Park and Hough, 2002; Roberts, 1992). These findings tell us something about ‘what the public would think’ if people were given the opportunity to form their opinions through processes of collective deliberation (Green, 2006: 133, quoting Fishkin, 1995: 162, emphasis in original). Thus, while much more research on the mutability of public views on crime and punishment remains to be done, the evidence that we have available to us at this point casts significant doubt on the view that hostility toward offenders is a social constant.

Perhaps, though, as Michael Tonry recently suggested in an address to the American Society of Criminology, the persistently high rate and severity of punishment in the United States is the result of public indifference. Explaining his view on why rates of punishment are so much higher in the United States than in most other countries, Tonry (2008: 11) argues that: ‘Americans do not care much about the human rights of their domestic enemies in the “wars” on drugs and crime’. Tonry contends, moreover, that the indifference of Americans toward the rights of offenders has deep historical, cultural, and political roots. The clear implication of Tonry’s analysis is that Americans are unlikely to become more concerned for the rights of offenders, short of major transformations in the social fabric of American society. There is no sense in Tonry’s account, or in other similar accounts, that arguments—political or moral—might make any difference.

In one important respect, Tonry’s analysis seems to be onto something very important. Over the past decade or more, there is little evidence that the American public cares much about crime and punishment issues—one way or the other. As Tonry suggests, the attitude of the public today appears to be mainly one of indifference, not of hostility. Others have drawn similar conclusions. In his commentary on the social reaction to mass incarceration, Glen Loury (2009, emphasis added) observes that, ‘speaking of the country as a whole, there is no broadly based demand for reform, no anguished self-criticism, no public reflection in the face of this massive, collective failure’. Similarly, the legal scholar Michele Alexander (2010: 221–222, emphases added) concludes in her book The New Jim Crow: Mass Incarceration in the Age of Colorblindness that:

All of the needed [penal] reforms have less to do with failed polices than with a deeply flawed public consensus, one that is indifferent, at best, to the experience of poor people of color …. It is the failure to care … that lies at the core of [the] system of control.

Yet, unlike Tonry, Loury and Alexander suggest that public indifference about the rights of offenders may be attributed, in part at least, to the lack of a serious political movement to raise public concerns about problems with the American criminal justice system. Alexander (2010: 215) suggests this most clearly when she argues that, just as Martin Luther King and other civil rights leaders did during the 1960s, meaningful criminal justice reform will require reformers to ‘make [their] case in the court of public opinion’.

In her book Making Crime Pay, Katherine Beckett (1997) demonstrates the impact of politics on public opinion by showing how the public’s support for ‘getting tough on crime’ followed efforts by conservative ‘law and order’ politicians to make crime a political issue—not the other way around as some scholars had previously assumed. In a later book that she co-authored with Theodore Sasson, Beckett concluded that ‘contemporary wars on crime and drugs reflect the ascendance of a particular way of framing the crime problem’, which ‘were part of a larger effort to realign the electorate along racial (rather than class) lines and thus forge a new Republican majority’ (Beckett and Sasson, 2000: 73–74). Beckett and Sasson (2000: 73–74) also emphasize ‘that liberal politicians largely accepted [the] reframing’ of law-and-order conservatives, thus suggesting that part of the reason why the message of ‘law and order’ politics was so successful during the 1980s and much of the 1990s is because its claims were never really challenged. Marie Gottschalk (2006: 2) has similarly argued that the lack of a progressive movement to counter law-and-order politics provided what she refers to as the ‘permissive conditions’ for the massive expansion of the American carceral state.

What we do not know, however, is whether such a movement might have succeeded in countering the appeal of law-and-order politics. Likewise, in the current moment, we can do little more than speculate about whether a movement focused on raising public concerns about the rights of offenders would have any real impact. If the experiences of other movements to raise concerns about the rights of oppressed groups are any indication, the effort would not be an easy one and there would obviously be no guarantee of success. On the other hand, if the effort proved successful, it would certainly not be the first time that politics worked to change public consciousness about the treatment of a disfavored group. While as recently as the 1980s, one might have thought that public opinion on gay rights was intractable—perhaps for some of the same reasons (e.g. Puritanism, moralism, etc.) that Tonry suggests that public opinion on crime and punishment is uncompromising—the tide of opinion over the past two decades has shifted considerably in favor of gay marriage and other gay rights. And it is not simply that public opinion on gay rights has softened. Rather, many people today, including many heterosexuals, are actively demanding respect for gay rights. Much as it has been in changing public attitudes toward racial minorities and women, political struggle has undoubtedly been a major driver of this shift. It is not obvious why we ought to assume that a similar shift in thinking about criminal offenders—or at least about nonviolent offenders—is not possible. With regard to drug prohibition, the legal scholar Darryl Brown (2010: 988) has observed:

Substantial repeal or revision of drug laws may be no more implausible than repeal of homosexual sodomy laws once was; we have noted some modest changes in that direction …. Whatever the eventual outcome, drug crime and punishment is a topic of ongoing public debate—on the familiar terms of hamfulness and wrongfulness—of the sort that has led in the past to legislative decriminalization.

None of this discussion should be taken to suggest that a stronger movement to raise consciousness about the rights of offenders would necessarily yield changes either in policy or public opinion. Rather, the claim here is merely that, for all we know, this might be the effect, and in the present context, that the public’s apparent lack of concern about the rights of offenders may be the consequence of an impoverished political discourse about criminal justice (see Hay, 2007).

Making punishment legitimate: Deliberation and beyond

While several criminologists and sociologists of punishment have made the case for a deliberative-democratic approach to criminal justice policymaking, the most serious inquiry into the democratic legitimacy of criminal justice policy is found in the analysis of David Green (2008) in his book When Children Kill Children: Penal Populism and Political Culture. While the bulk of Green’s book is devoted to a highly compelling and convincing account of two very different social reactions to child-on-child murder in Norway and Britain, the final chapters of Green’s book turn squarely to the question of democratic legitimacy. While Green is only one of the latest in a growing list of prominent criminologists calling for a deliberative-democratic approach to criminal justice policymaking (e.g. Barker, 2009; Dzur and Mirchandani, 2007; Johnstone, 2000; Loader, 1997; Ryan, 1999), Green’s case for deliberative democracy is a unique one. Unlike other proponents of the deliberative-democratic approach who see the appeal of deliberation in terms of its potential to moderate the public’s views about criminal justice issues, Green is primarily interested in the value of deliberation as a means of rendering criminal justice policies democratically legitimate.

Like other proponents of deliberative democracy, Green argues that public opinion polls are generally a very poor method for gauging what people think and feel about an issue. He explains that polls tend to ‘compel respondents to make on-the-spot choices, whether or not respondents have reasonably sufficient knowledge to make them’ and ‘provide no means to distinguish between volatile … opinions … and the more stable and durable variety’ (Green, 2008: 245). This problem takes on special significance with polls that measure opinions about crime and punishment, since the public is so notoriously uninformed regarding basic facts like how harshly criminal offenders are sentenced or whether crime rates are going up or down. Green does not believe, however, that the problem is simply an information deficit and rejects the ‘conventional wisdom’ that the opinion reflected in survey results could be trusted if only the public were better educated on the facts. He explains that exposure to more accurate information, without more, does not lead people to develop ‘considered views’ about crime and punishment and contends that it is only ‘considered views’—or what he also refers to as ‘public judgments’—which have the potential of withstanding emotionally charged media coverage and populist rhetoric about crime (2008: 243). According to Green, ‘public judgment’, as opposed to mere ‘mass opinion’, is formed through a deliberative dialogue in which people have the opportunity to resolve inconsistencies in their thinking, consider alternative perspectives, contemplate the relevant facts, reconcile tensions between competing values, and come to terms with the moral implications of their views.

In order to foster this kind of judgment, Green argues that the State should institutionalize deliberative polls. As it has been employed by Robert Luskin and his colleagues (2002: 459), the deliberative poll involves the following formula:

Select a national probability sample of the citizen voting age population and question them about some policy domain(s). Send them balanced, accessible briefing materials to help inform them and get them thinking more seriously about the same subject(s). Transport them to a single site, where they can spend several days grappling with the issues, discussing them with one another in randomly assigned, moderated small groups and putting questions generated by small group discussions to carefully balanced panels of policy experts and political leaders. At the end, question the participants again using the same instruments as at the beginning.

Green (2008: 290) contends that governments might be inclined to institutionalize a process like this since it would be a ‘a way [for them] both to be seen to address people’s most pressing concerns while actually working simultaneously to help them formulate considered judgments about them and their solutions’. Significantly, Green (2008: 290–291) argues that ‘unlike radical visions elevating the role of “strong publics” to decide matters of policy’, the institutionalization of deliberative polls would ‘not require radical political reform’ but could be implemented without disturbing existing institutional arrangements.

While Green (2008: 290) notes that deliberative polls have tended, thus far, to have a liberalizing effect on the views of participants, he does not discount the possibility that they might ‘conservatize public views overall and make the public even more enthusiastic about ‘banging up’ offenders’. This brings him to one of his central contentions: the question of whether or not the deliberative poll facilitates judgments which are liberal or conservative is ‘democratically irrelevant’. According to Green, the objective of deliberation is not to change public attitudes so that they will line up more with the ‘ideological agendas’ of criminologists and other experts; rather, it is to foster public judgments which can become the foundation for more democratically legitimate policies (2008: 290). ⁴

However, the standard that Green offers for evaluating the ‘democratic legitimacy’ of criminal justice policies is, as he points out, a weak one. Because he is interested in offering a ‘realistic’ proposal for reform, Green devotes much of the conclusion of his book to arguing that the institutionalization of ‘deliberative polls’ would be attractive to a variety of interested actors, including politicians. Yet, while such realism might be warranted if Green’s goal were merely to improve upon existing approaches to criminal justice policymaking, such a consideration seems out of place in a discussion about what should count as democratically legitimate. ⁵ It is one thing to say that, in light of political constraints, the institutionalization of deliberative polls is the best that we can hope to do, and that it is, in any case, a step in the right direction; it is quite another, however, to say that, if instituted, deliberative polls would yield public judgments and policies that deserve to be called legitimate. As radical-democratic theorists have observed, one of the principal dangers of deliberative democracy—and this would seem to be especially true of its weaker forms—is that it risks legitimating the illegitimate. Related to this concern is Green’s prediction (and hope) that the public’s trust in the State’s ability to govern crime will increase as a result of citizen participation in deliberative polls. Yet, if deliberative polls fall well short of the kind of democratic processes through which criminal justice policies should ideally be enacted, why should we regard public trust in the policies that emerge out of deliberative polls as a positive development?

The argument here is not against the institutionalization of deliberative polls per se. It is, rather, in opposition to the notion that public judgments about criminal justice issues, or the policies based upon these judgments, should be viewed as legitimate merely because they are the product of deliberative polls or, for that matter, any other form of formal institutionalized deliberation.

The problem with this notion is that it ignores how structural inequalities might impact the actual functionings of deliberative forums. It is certainly not that Green ignores power differences. To the contrary, one of the principal purposes of his work is to examine how dominant discourses about crime and punishment are produced by unequal power relationships in society (Green, 2008: 103–104). Moreover, one of the primary analytical methods he employs is critical discourse analysis, a method which is designed to capture the ways in which power produces dominant discourses as well as the ways in which powerful interests are served by these discourses (2008: 104). Yet, while Green (2008: 106) maintains that public deliberation in the form of exercises like deliberative polls has the potential to disturb the processes by which dominant discourses are produced and maintained, he fails to take into account how deliberative institutions and processes might also be shaped by power.

Inequalities in power would likely influence institutionalized deliberation in at least two very important ways. First, less powerful members of society may have less access to deliberative forums and less capacity to participate meaningfully in them. Second, and more importantly, the very questions and range of ‘politically possible’ solutions which are up for discussion may be defined in advance, so that any changes which threaten to fundamentally alter existing institutional or structural arrangements would be off the table. Thus, while deliberative forums may appear as ‘democratically legitimate’, this may only serve to mask a deeper reality:

When discursive systems frame a deliberative process, people may come to agreement that is nevertheless at least partly conditioned by unjust power relations, and for that reason should not be considered a genuinely free consent …. When such hegemonic discourse operates, parties to deliberation may agree on premises. They may accept a theory of their situation and give reasons for proposals that the others accept. But the premises and terms of the account mask the reproduction of power and injustice.

The most effective and most just means of reducing the broad range of socially harmful behaviors that we call ‘crime’ may be to transform the structural conditions which arguably produce these behaviors (J. Young, 2002). Many people have, however, already been conditioned to view crime in purely volitional terms and to see the transformation of structural conditions as either undesirable or politically impossible. In focus group discussions with residents from a racially and economically diverse mix of neighborhoods in Boston, Theodore Sasson (1995: 145, 170) found that the ideological commitment to thinking about success and failure in terms of individualism and self-reliance was so strong among people, that the notion that poverty causes crime struck them as ‘immoral’, offending the commonly held liberal belief that ‘we are all the same’. In addition to this kind of ideological conditioning, people might also find themselves with very little choice but to support ‘get-tough’ approaches to crime because they cannot conceive of any other means of solving the problem as it has been defined for them. An underappreciated fact about the politics of crime and punishment in the United States is that strong support for ‘getting tough on crime’ has occasionally come from residents of low-income minority communities. Some commentators have viewed this type of support as a stamp of democratic legitimacy. Dan Kahan and Tracy Meares have argued, for example, that inner-city residents who have embraced constitutionally suspect methods of social control, such as rigid curfews, loitering ordinances, and ‘emergency’ searches of apartments in housing projects, should have the authority to enact these kinds of measures, because they ‘are the ones who face the deadly risks associated with gang criminality’ (Kahan and Meares, 1999). Rather than viewing the reaction as democratically legitimate, however, it may make better sense to see it as a case in which people elected a course of action, not because it advanced the public interest, or even because it was in their best interests, but because they could not imagine an alternative approach (Lukes, 2005: 28).

The discussions around what to do about the United States ‘drug problem’ provide a good example of how agenda-setting might function to limit the range of arguments that can be brought to bear on an issue. Even as alternative ways of thinking about the drug problem have gained currency in recent years, there has been virtually no discussion about whether narcotics should be perceived as any more of a problem, or a different kind of problem, than the use of alcohol or a host of other legal drugs, the pharmacological effects of which are virtually indistinguishable from illegal drugs (Wu, 2007). It is well established by now that the very notion of the drug problem was conceived in unjust relations of power (Reinarman and Levine, 1997); yet this fact rarely figures into public debates about what to do about it. If contemporary discourses (including criminological discourse) on drug policy are any indication, we might reasonably anticipate that deliberative forums would consider claims about which strategies would most effectively or efficiently control the use and sale of drugs. However, more critical considerations about drug policy—such as whether the State should ever be permitted to violently repress conduct that is itself nonviolent or that does not involve the direct violation of anyone else’s rights (Husak, 2002)—are unlikely to be taken seriously.

It is doubtful, too, that state-sanctioned deliberative forums would be as attuned to the socially harmful behaviors of the State and other powerful actors—whether these have yet been officially designated as ‘crimes’ or not (Hillyard and Tombs, 2007)—as these forums would be to crimes that are disproportionately committed by the most disadvantaged members of society. This could happen for one of two reasons. Deliberative forums may simply refuse to hear grievances that threaten powerful interests. Or forum participants might never think to question prevailing definitions of crime, such that they might call attention to the harmful activities of the State and other powerful actors. This would be a classic case of power operating to prevent people from ‘having grievances [in the first place] by shaping their perceptions, cognitions and preferences’ (Lukes, 2005: 28). The extent to which these processes are at work will, of course, impact the way that deliberative democracy functions by privileging some problems or issues over others. In so doing, deliberative democracy may have the effect of legitimating institutions, policies, and ideas that were borne of unequal and unjust power relations.

It would probably be argued in response that deliberative democracy should accommodate the views of all interested parties, however much these views might radically depart from conventional ways of thinking or challenge existing power arrangements. This raises the question, though, of whether state-sanctioned deliberative forums are such a realistic option after all. To the extent that such forums would have the potential to undermine the privileged positions and ways of thinking that state actors and other social elites presently enjoy, two outcomes seem likely. Contrary to what Green contends, politicians and other powerful actors may see more deliberative modes of policymaking as too risky an endeavor, and thus may opt for maintaining the current system of criminal justice policymaking. Alternatively, they may simply ensure that deliberative forums are structured in such a way that their interests are not fundamentally threatened. This could be accomplished in a variety of ways—by, for instance, taking up only a limited range of problems and exposing forum participants only to a limited range of perspectives on these problems.

A radical-democratic approach to democratic legitimacy: Activist challenges and good moral panics (or putting bees in bonnets)

In Green’s treatment, deliberative democracy is principally, if not solely, a formal process that institutionalizes interactions between citizens, experts, and the State. Radical-democratic theorists, by contrast, argue for a much more expansive conception of deliberation that takes into account the interactions that occur between individuals and groups in a variety of ‘informal’, and sometimes oppositional, contexts, such as protest marches, picket lines, sit-ins, and the like. They also contend that the transgression of deliberative boundaries is often necessary as a means of challenging dominant power structures.

Borrowing a phrase from Daniel Yankelovich, Green (2008: 263) contends that successful deliberation must start with the recognition that people have ‘bees in their bonnets’—that is, people have certain ‘pet preoccupations’ which must be addressed if they are to think that their views are truly being taken seriously. While this much seems right, radical-democratic theory also demands that there be some means of accounting for the habit in democratic societies of ‘turning a blind eye’ to cruelty and suffering, a social phenomenon which Stanley Cohen has termed the ‘state of denial’. Taking this tendency into account, we might think about the robustness of democracy as depending not just on the design of political institutions and other formal spaces of deliberation, but also on the extent to which activist communities challenge people to face up to facts like mass incarceration, prison rape, and the inequalities that arise from criminalizing some drugs and not others. To take Green’s metaphor one step further, we might think that democracy ought to entail putting more bees in bonnets, not just responding to the ones that are already there. It is precisely this kind of agitation that the radical approach to democratic legitimacy demands.

As with most ideas, the definition of radical democracy is contested terrain (see Keenan, 1997). For the present purposes, however, the disagreements between radical democrats are not nearly as important as their agreements. At its core, the radical-democratic approach demands: (1) the inclusion of a broad range of constituencies, and especially of marginalized groups and social movements, in the democratic process; (2) a multiplicity of spaces—or ‘public spheres’—in which people have meaningful opportunities to express themselves, to exchange ideas, to become more politically and socially aware, and to form cultural and political identities; and, finally, (3) the accommodation of a broad ‘range of communicative styles’, including highly contentious and rhetorical forms of political communication which, perhaps unlike purely rational and dialogic forms of communication, have the potential to call taken-for-granted way of thinking into question (Ferree et al., 2002: 210–215, 222–228). As Chantal Mouffe (2000: 103) has explained, the distinction between radical democracy and deliberative democracy rests, in essence, on radical democracy’s insistence that ‘the prime task of democratic politics is not to eliminate passions or to relegate them to the private sphere in order to render rational consensus possible, but to mobilize those passions toward the promotion of democratic designs’. From the radical-democratic perspective, ‘the political’—all those aspects of social and economic life which, however natural they may seem, are the product of human choices—should be seen as and rendered ‘political’. The antithesis of radical democracy, then, is depoliticization: the process by which issues or problems are taken out of the realm of public debate and discussion and are effectively defined as merely the private concerns of the individual or as matters for technocratic control (Haines, 1979: 122; see also Mills, 1943). ⁶

Under the radical-democratic approach, the test of a policy’s legitimacy is not met merely because citizens have consented to it by registering their approval in an election booth or in a public opinion poll. Nor is it satisfied, because citizens have consented to it as part of a controlled exercise in deliberative democracy. The test, rather, is whether all the relevant perspectives for thinking about the policy or practice have been made available for public consumption, such that at least we can plausibly say that the opinions citizens form about a given policy choice are the product of a robust public discourse. Particularly in a society like the United States, where political debates have long been shaped by acute inequalities of economic and political power (Medearis, 2005: 55), the radical democrat is especially interested in knowing the extent to which oppositional and otherwise marginalized perspectives are given voice in public discourse.

The radical-democratic approach admonishes us to be wary of formalized deliberation, because powerful individuals and groups often ‘have the power unfairly to steer the course of discussion’ and to manufacture a ‘pseudo-consensus’ (I.M. Young, 2001: 673) on issues that might have otherwise become the object of political contention. Rather than working to reach consensus with the State or other powerful interests, social movements, particularly movements of marginalized groups, often aim to create crises where there were none before. Insofar as the disruption of consensus challenges dominant power structures and opens up public discourse to a broader range of perspectives, radical-democratic theory regards it as furthering, not hindering, the cause of democracy. Likewise, while radical-democratic theory certainly views rational debate and discussion as vitally important, it also sees nondiscursive and highly emotional forms of communication as a valuable or even necessary means to raise consciousness and inspire people to action. These forms of democratic engagement are perceived as essential, because one of the goals of democratic politics, according to radical-democratic theorists, should be to disturb complacency: ‘to make us wonder about what we are doing, to rupture a stream of thought’ (I.M. Young, 2001: 687).

This model of democratic communication shares some important features with Stanley Cohen’s notion of the ‘good moral panic’. In sharp contrast to contemporary liberal thought, which often tends to regard rationality as the cure for injustice, Cohen (2002/1971: xxxiii, emphasis in original) says in one of his most recent discussions of ‘moral panics’ that his ‘own cultural politics entails, in a sense, encouraging something like moral panics about mass atrocities and political suffering’. ‘Perhaps’, he provocatively suggests, ‘we could purposely recreate the conditions that made the Mods and Rockers panic so successful … and thereby overcome the barriers of denial, passivity and indifference that prevent a full acknowledgement of human cruelty and suffering’. With respect to punishment in the United States, Cohen’s politics of ‘good moral panics’ would entail much more than just trying to convince policymakers and their publics—as is so fashionable these days—that the narrowly defined costs of some forms of penal repression (e.g. tax dollars spent on prisons) outweigh its narrowly defined benefits (e.g. the percentage reduction in crime rates). While Cohen does not say exactly how we might go about the work of creating ‘good moral panics’, it would presumably involve the same kinds of tactics—disruptive protests, sit-ins, acts of civil disobedience, jail-packing, and so on—that proponents of radical democracy have long seen as essential ingredients of a robust democracy.

While the radical-democratic framework is principally being offered here as a ‘counterfactual ideal’—or ‘yardstick’—for measuring democratic legitimacy (Baert, 2007: 129), it is important to keep in mind the important historical role that radical-democratic politics has played in struggles for justice and democracy in the United States and elsewhere. As Iris Marion Young (2001: 670) observed, while democratic theorists outside of the radical-democratic tradition seldom grant a prominent place in their theories for ‘the role of demonstration and direct action’, there is no question that some of our most cherished liberties, including liberties essential to basic democratic participation, were won through the struggles of activist movements. In the United States, the story of democracy has hardly been one of the kind of cool, detached rationality that institutional forms of deliberation typically demand (Medearis, 2005). ⁷ Rather, democratic struggles against injustice have nearly always taken the form of what Young refers to as ‘critical-oppositional’ politics: abolitionists, civil rights activists, anti-war protesters, black radicals, feminists, and other activist movements employing less than conventional, and sometimes illegal, methods to challenge dominant power structures and discourses. One of the reasons why this ‘critical-oppositional’ aspect of democracy has proved to be so important is because it is often one of the only means by which awareness can be raised about problems that go unnoticed or are framed in terms that take dominant ways of thinking for granted. ⁸

The civil rights movement presents a powerful case of how this type of politics worked not just to advance social justice, but also to enrich democracy. In the heyday of Jim Crow segregation, it surely must have seemed that white Americans cared very little about the sufferings of blacks. But things changed, in no small part, because the civil rights movement forced white Americans to take a long, hard look at the effects of Jim Crow segregation. Regarding the relationship between the struggles of the civil rights movement and legislative victories like the Civil Rights Act, Martin Luther King declared in a 1965 speech:

White America was profoundly aroused by [the march in] Birmingham because it witnessed the whole community of Negroes facing terror and brutality …. And from the wells of this democratic spirit, the nation finally forced Congress to write legislation in the hope that it would eradicate the stain of Birmingham.

While White America of the politically and morally complacent era immediately following the Second World War seemed to care little about the cruelties and injustices of racial segregation, King and others challenged them to care and achieved no small amount of success in doing so. And while it would be naïve to think that oppositional politics were alone responsible for changing public sentiments about racial segregation, much less for dismantling the legal and political bases of segregation (Bell, 1987; McAdam, 1999: 156–159), there is nevertheless strong evidence that the civil rights movement succeeded both in raising public awareness about civil rights while also shifting public support in favor of the movement. Doug McAdam (1999: 271 n. 10) cogently explains that, while the movement’s successes were the consequence of a complex ‘interplay between internal and eternal processes’, ‘one of the primary forces contributing to the growing salience of civil rights was the movement itself, which sought, through dramatic protest, to generate support from other segments of society’. Thus, in the case of the civil rights movement, democracy worked, in part, because an oppositional political movement clarified the terms of a public debate, not simply through rational arguments and deliberation, but through emotional and dramatic forms of political communication.

The suggestion here is certainly not that rational argumentation and deliberation should be abandoned. There must, however, be some effort to clarify precisely what is at stake in a debate before we embrace purely ‘rational’ dialogue. Otherwise, taken-for-granted ways of thinking—ways of thinking which often originate in unequal relations of power—will go unchallenged. The danger, in other words, is hegemony—a state of affairs in which the ideas, values, and norms of dominant classes, races, religions, and other groupings in society come to be regarded as natural or at least so well established that subordinate groups believe that it is futile to question them (Milliband, 1990: 346). In the absence of efforts to denaturalize these ideas, values, and norms and to bring them squarely back into the realm of the political, or in the event that counter-hegemonic efforts are substantially constrained by dominant power structures (see, for example, Gamson and Wolsfeld, 1993; Goodwin and Jasper, 1999), the democratic legitimacy of our policies and the various actions that the State takes under their authority should remain in doubt. ⁹