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Política criminal y libertad

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Marcela Gutiérrez Quevedo
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Thomas Mathiesen
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Dan Kaminski
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The justifications and explanations of imprisonment

Lessons from criminal policy developments in Sweden, Scandinavia and Western Europe

Henrik Tham

Résumé

How could the relatively low but increasing Swedish and Western European prison populations be explained? The increases do not seem to be due to crime trends or to punitive demands from the public. Instead, the increases appear to be linked to special issues, such as drugs, victims and immigration and the perceived threat from abroad, which have been politically constructed as problems that should be dealt with by means of penal legislation and the criminal justice system. It is argued that politicians are increasingly experiencing a lack of control over developments as a result of “eu-ization” and globalization. Politicians have resorted to law-and-order as a means of increasing their legitimacy as the ultimate defenders of the well-being and security of their citizens.

Texte intégral

TRENDS IN CRIME AND IMPRISONMENT

1Imprisonment has been increasing in Sweden (Figure 1). The trend over recent decades has been increasing, although the decline witnessed over the last few years should also be noted.

Figure 1. Number of prisoners, including remand prisoners, per 100,000 of population, 1921-2011. Stock data

Figure 1. Number of prisoners, including remand prisoners, per 100,000 of population, 1921-2011. Stock data

Source: Official Swedish Criminal Statistics. von Hofer & Tham, 2013.

  • 2 K. Krajewski, “Penal developments in Poland: New or old Puitiveness?”, In Daems, T., Van Zyl Smit, (...)

2Levels of imprisonment have also been increasing in Western Europe. (The former communist countries in Europe have been excluded since they are still affected by the communist period and therefore require a partially separate analysis, see for example Krajewski2).

Table 1. Number of prisoners, including remand prisoners, in Western Europe, 1992-2013. Average increase in 20 countries. Index

1992

1995

1998

2001

2004

2007

2010

2013

1

1.08

1.11

1.11

1.26

1.27

1.31

1.29

Source: International Centre for Prison Studies.

3It might be reasonable to look for an explanation in terms of an increase in crime. However, crime has recently undergone a stagnation and even a decline in Sweden, Scandinavia and Western Europe. This is shown in Sweden and other countries not only by statistics focused on crimes reported to the police and the number of people convicted of offences but also by studies of self-reported criminality, victim surveys and hospital and mortality statistics.

4The increase in imprisonment levels in Sweden and three of the other Scandinavian countries is small (Figure 2). It is nonetheless somewhat unexpected, however. In earlier periods, levels of imprisonment remained relatively stable or even declined in spite of rising crime. Finland is particularly interesting in this regard, with a sharp drop in prison numbers, but with the same crime trends as the other Scandinavian countries (Figure 3).

  • 3 T. Lappi-Seppälä, American Exceptionalsim in a Cross Comparatve Perspective, National Research Inst (...)

5A similar example can be found by comparing Canada and the usa. The two countries have over recent decades experienced very similar trends in theft offences reported to the police. At the same time, the prison population in Canada has remained stable, while in the uSa it has increased fourfold3.

Figure 2. Number of prisoners, including remand prisoners, in Denmark, Finland, Norway and Sweden, per 100,000 of population, 1950-2010. Stock data

Figure 2. Number of prisoners, including remand prisoners, in Denmark, Finland, Norway and Sweden, per 100,000 of population, 1950-2010. Stock data

Source: von Hofer et ál., 2012.

  • 4 L. Westfeldt, Brott och straff I Sverige och Europa. En studie i komparativ kriminologi, PhD-thesis (...)
  • 5 M. Aebi & A. Linde, “Is There a Crime Drop in Western Europe?”, European Journal of Criminal Policy (...)
  • 6 L. Westfeldt, Brott och straff I Sverige och Europa. En studie i komparativ kriminologi, PhD-thesis (...)
  • 7 J. Van Dijk, J. Van Kesteren & P Smit, Criminal Victimization in International Perspective. Key fin (...)
  • 8 M. Aebi & A. Linde, “Is There a Crime Drop in Western Europe?”, op. cit., pp. 251-277.

6Western European countries have on the whole experienced similar crime trends. As in Scandinavia, the trend is dominated by theft offences. The increase in crime witnessed during the decades following the Second World War was also primarily the result of an increase in theft. Homicide also increased, first and foremost during the 1960s and 70s4. Over recent decades, both theft and homicide have been on the decline5. While there has been an increase in crimes of violence reported to the police, this appears to be due to a shift in reactions to this type of crime rather than to changes in this form of offending behavior. This is shown by the results from victim studies6. Overall victimization has decreased according to the international crime victim studies7. Drug offences registered by the police have increased very clearly8 but the effects of criminal justice are here difficult to distinguish from changes in actual behavior.

Figure 3. All criminal code offences reported to the police in Denmark, Finland, Norway and Sweden, per 100,000 of population, 1950-2010

Figure 3. All criminal code offences reported to the police in Denmark, Finland, Norway and Sweden, per 100,000 of population, 1950-2010

Source: von Hofer et ál., 2012.

  • 9 L. Westfeldt, Brott och straff I Sverige och Europa. En studie i komparativ kriminologi, op. cit.
  • 10 T. Lappi-Seppälä, American Exceptionalsim in a Cross Comparatve Perspective, op. cit., p. 18.

7In spite of the similar trends in crimes reported to the police, the trend in levels of imprisonment since 1950 differs across different countries. An earlier analysis reported increases, decreases, U-shaped developments, inverted U-shape developments and fluctuations around a stable mean9. A recent analysis of the trends in crime and imprisonment in Western European and the Anglophone countries concludes that “it is hardly possible to explain the differences in national incarceration trends by differences in the level of trends of index-crimes”10.

8These empirical analyses seem to support the theoretical propositions formulated in the classic work by George Rusche and Otto Kirchheimer, Punishment and Social Structure (1939/1967) as early as prior to the Second World War.

  • 11 G. Rusche & O. Kirchheimer, Punishment and Social Structure, New York, Russel & Russel, 1939/1967, (...)

“The bond, transparent or not, that is supposed to exist between crime and punishment prevents any insight into the independent significance of the history of penal systems. It must be broken. Punishment is neither a simple consequence of crime, nor the reverse side of crime, nor a mere means which is determined by the end to be achieved. Punishment must be understood as a social phenomenon freed from both its juristic concept and its social ends. We do not deny that punishment has specific ends, but we do deny that it can be understood from its ends alone”.11

9How then should the apparently unexpected increase in imprisonment in Sweden, Scandinavia and Western Europe be explained? Sweden will be the focus of analysis, but the results of the analysis may also be used to formulate hypotheses for the trends noted in the other countries.

THE POLITICIAN AS EXPERT

10Previously, Swedish politics was more inspired by reformism and social engineering. This made politicians more sensitive to analyses showing that increases in imprisonment did not appear to have any positive effects on crime, either at the aggregate or the individual level. Since imprisonment is costly, such findings should lead politicians to reconsider their crime policy and to look for alternatives to prisons.

11However, this is no longer the case. The justifications for imprisonment have changed. The courts are today guided by different sentencing principles than those of a generation ago. These principles were explicitly changed in 1989 when the just deserts principle replaced the rehabilitative principle.

  • 12 Swedish Penal Code, Ch. 1, § 7
  • 13 Swedish Penal Code, Ch. 29, § 1.

“In the choice of sanctions, the court, with an eye to what is required to maintain general obedience to the law, shall keep particularly in mind that the sanction shall serve to foster the sentenced offender’s rehabilitation in society.”
1965 - 1988
12
“Penalties shall be determined with regard to the desirability of uniform and consistent adjudication and set within the scale of punishment applicable to the culpability of the offence taken as a whole.”
1989 -
13

12At the legislative level, the justifications today take the form of pronouncements. Criminalizations and penalizations become justified not as means but as goals in themselves. Legislation becomes expressive and punishment becomes a way for politicians to show seriousness, concern and empathy. This is clear in both Scandinavian and other European countries.

13The claimed seriousness of different types of crime must however in turn be justified. In a democracy, this legitimation reasonably takes the form of referring to the demands and feelings of the people. Acting on behalf of the citizens is “democracy at work”. An example from Sweden can be taken from a statement made by the Minister of Justice when introducing a parliamentary bill for stiffer penalties for serious crimes of violence:

  • 14 B. Ask, “Skärpta straff för våldsbrott”, Press conference 2010-01-28, Ministry of Justice, Sweden, (...)

“There is an impatience in Swedish society, where penalties for very serious crimes of violence are not in line with the general sentiment [...]
This critical view out there among people is not noticed in court practice […]
[…] there are therefore strong reasons for increasing the penalty level for the most serious crimes of violence”.
14

  • 15 F. Balvig, Danskernes syn på straf. København: Advokatsamfundet, 2006, p. 43.
  • 16 F. Balvig, H. Gunnlaugsen, K. Jerre et ál., “Den nordiske retsbevidsthedsundersøgelse”, Nordisk Tid (...)
  • 17 F. Balvig, H. Gunnlaugsen, K. Jerre et ál., “Den nordiske retsbevidsthedsundersøgelse”, Nordisk Tid (...)
  • 18 Morgunbladiðið, Hæstirettúr og kynferðisbrot, 2007-09-15.

14Similar examples can be found in other Scandinavian countries. A Danish Minister of Justice stated in an interview that: “At the same time there has been a much greater focus on getting the offenders to desist from their criminal existence than on the [idea that] the punishment should correspond to what ordinary people now actually think is right and proper”15. When the Norwegian Stortinget adopted a new penal law in 2009, the sanctions for violent and sexual offences were stiffened considerably, amidst complete agreement among the political parties that it was necessary that the sentences passed by the courts should correspond to the views of the public16. In Iceland, there is much to suggest that what is referred to as the will of the people has been used to justify the continuous hardening of sentencing policy witnessed over recent years17, and a leading daily newspaper has noted that: “It is still evident that the Supreme Court is too lenient when it comes to serious sexual offences and other violence, a disgrace to the public”18.

15This shift in sentencing principles has had an interesting effect for us as criminologists and other experts. We have been put aside. As long as sanctions are justified by reference to their effects on crime we can contribute. We can use our knowledge to evaluate the general and individual preventive effects of sanctions. We cannot, however, say anything more about severity or penal value than any other citizen. And with the general sense of justice being used as the legitimation for punishment, it will be the elected representatives of this sense of justice that have the right to speak, the politicians, the Minister of Justice and ultimately the Prime Minister.

THE PUBLIC’S DEMAND FOR MORE IMPRISONMENT?

  • 19 F. Balvig, Danskernes syn på straf. op. cit.

16But what we can still do as scientists is investigate the content of the general sense of justice. This has recently been done in all five Scandinavian countries, in a project based on an earlier Danish study19. The study is not longitudinal, but the results can still illustrate the empirical validity of political demands for more punishment, as exemplified by the quotes from the Swedish Minister of Justice and others.

  • 20 K. Jerre, A Public’s Sense of Justice in Sweden-a Smorgasbord of Opinions, PhD-thesis, Stockholm, S (...)

17Three variants of the general sense of justice were analyzed20. The first, the general or spontaneous sense of justice was measured by means of nationally representative telephone interviews. Simple questions were posed like “punishments in Sweden are generally too mild” and “violence should be punished much more severely than today”.

18The second variant examined in the study concerned what was labeled the informed sense of justice. This was investigated by means of a postal survey in which six typical crime cases were presented in a short description and the respondents chose one or two sanctions that they thought were the most appropriate from a list provided. The six cases that were assessed involved an incident of domestic violence in which the woman had to go to hospital, the smuggling of a quarter of a kilo of heroin, a shop robbery conducted under knife threat, a rape in a hotel during a company meeting, the embezzlement of 33,000 Euro (1 million cop) from an elderly bank customer, and a case of street violence in which the victim received a serious facial injury.

19The third study was intended to measure what was labeled the concrete sense of justice. Twelve groups of a total of 120 persons in the participating countries’ capital cities were shown a filmed mock-trial of one of four of the cases in the vignettes. The participants were selected to correspond to the views expressed by the general public on simple questions measuring punitiveness. As an incentive to participate, they received 45 Euro (112,000 cop) After first filling in the same form as in the postal survey, they saw the film, completed the survey again and then discussed the pros and cons of the different sanctions with the help of a moderator. They then completed the survey a third time.

20A fourth study consisted of sending the surveys to professional judges. The answers from the public could then be compared to the type and severity of the sanctions that would actually be awarded in court.

21The results presented here are those from Sweden. When it comes to the general or spontaneous sense of justice (Figure 4) the claims that the sentences are too lenient are correct – people want stiffer punishments. A clear majority of the respondents think that punishments in Sweden are too lenient.

Figure 4. The general sense of justice in Sweden. Proportion of the respondents in the telephone interviews agreeing or disagreeing with penal policy statements

Figure 4. The general sense of justice in Sweden. Proportion of the respondents in the telephone interviews agreeing or disagreeing with penal policy statements

Source: Jerre & Tham, 2010

22However, when they were given more information and were at the same time asked to consider specific cases, the public (in the postal survey) became less eager to demand more imprisonment. Figure 5 shows the proportion proposing a prison sentence, the proportion who think that the crime would lead to a prison sentence in court and the proportion in the panel of judges who proposed a prison sentence. In all of the cases included in the survey, the public thought that professional judges were more lenient than they actually are. In three of the cases, partner violence, rape and street violence, the public also wanted to increase the punishment in relation to the sentence they believed would be awarded in court. However, in all of the six cases, the proportion of the public that wanted a prison sentence was smaller than the proportion of the professional judges who stated that they would have awarded such a sentence.

Figure 5. The informed sense of justice in Sweden Proportion of the respondents in the postal survey choosing jail sentences by comparison with the assessments of professional judges’

Figure 5. The informed sense of justice in Sweden Proportion of the respondents in the postal survey choosing jail sentences by comparison with the assessments of professional judges’

Source: Jerre & Tham, 2010

23Another way of comparing the assessments made by the public and the panel of judges is to calculate the time meted out in the proposed prison sentences. This comparison is shown in Figure 6, where alternatives to prison have been coded as zero. The figures are averages (the median) and it should not be forgotten that a minority of respondents did want longer prison sentences than the judges.

24In the cases of rape and domestic violence, the total length of prison time awarded is the same for the public and the judges. In the other four cases the public recommended deprivation of liberty to a much lesser extent. If the comparison is limited to those who have recommended imprisonment there is no major difference between the judges and the public. However, the marked difference in the case of drug smuggling remains. This is particularly remarkable in the light of the harsh Swedish drug policy – a policy that is to a high degree justified by reference to the public sense of justice.

Figure 6. The informed sense of justice in Sweden. Number of prison months awarded by the respondents in the postal survey by comparison with the assessments of professional judges

Figure 6. The informed sense of justice in Sweden. Number of prison months awarded by the respondents in the postal survey by comparison with the assessments of professional judges

Source: Jerre & Tham 2010

25Moving on to the concrete sense of justice, Figure 7 shows the average number of months in prison that the public wanted to award, once again counting alternatives to prison as zero months. When provided with even more information about the perpetrator, the victim and the situation of the crime, the distance between the public and the panel of judges became more pronounced. In all of the cases the public were clearly more lenient than the judges in terms of imprisonment. The public preferred the use of treatment sanctions and the awarding of economic compensation to the crime victim. The most startling result is that less than half of the participants wanted to send someone who had smuggled a quarter of a kilo of heroin into the country to prison, while the judges would award five years.

Figure 7. The concrete sense of justice in Sweden. Number of prison months awarded by the focus group participants before and after viewing a filmed court trial and participating in a moderated discussion, by comparison with the assessments of professional judges

Figure 7. The concrete sense of justice in Sweden. Number of prison months awarded by the focus group participants before and after viewing a filmed court trial and participating in a moderated discussion, by comparison with the assessments of professional judges

Source: Jerre & Tham, 2010

26In summary, the three studies measuring the different variants of the public’s sense of justice would look like this: (Figure 8)

27Based on simple opinion poll questions, the Minister of Justice is right – the public demands more punishment. When the public is provided with more information on crimes and sanctions, she is not right. And even when the public come to the same conclusion as the judges, this still falls short of the claims from the Minister of Justice that the public is impatient with the courts for not meting out more severe punishments.

Figure 8. Proportion of participants in a telephone poll, a postal survey and a focus group study who wanted longer prison sentences than would be awarded in accordance with court practice in Sweden

Figure 8. Proportion of participants in a telephone poll, a postal survey and a focus group study who wanted longer prison sentences than would be awarded in accordance with court practice in Sweden

Source: Jerre, 2013

  • 21 F. Balvig, H. Gunnlaugsen, K. Jerre et ál., “Den nordiske retsbevidsthedsundersøgelse”, op. cit., p (...)

28The public seem to be more interested in helping the crime victim and the offender. This is shown by the desire to provide economic compensation to the victim, and by demanding the rehabilitation of the offender so that he will not repeat his crimes. The central findings are very much the same in the other Scandinavian countries21 (data from Finland not yet published).

THE POLITICAL CONSTRUCTION OF IMPRISONMENT

29The results from the study of the general sense of justice mean that the increases in penal legislation and imprisonment in Sweden should be regarded as a function of punitiveness from above rather than from below. Punitiveness is driven by the politicians and the political parties. This can also be seen from the fact that penal legislation in Sweden has been dramatically expanded over a period of almost half a century.

Table 2. Expansion and contraction of penal law in Sweden 1968-2011 and type of government

Government

Expansion of penal law

Contraction of penal law

1968-1976 Social democratic

1968:7 Drugs
1971:10 Tax fraud
1971:99 Aircraft hijacking
1972:67 Drugs
1972:96 Gambling
1973:37 Terrorism
1973:115 Temporary arrest
1975/76:82 Debtor crimes

1970:125 Pornography
1972:138 Military arrest
1972:138 Death penalty in war
1974:20 Prison regime
1974:70 Abortion
1975/76:42 Recidivism
1975/76:42 Theft and robbery
1975/76:113 Drunkenness

1976-1982 Centre right

1978/79:62 Prison regime
1980/81:46 Drugs
1980/81:108 Environmental crime
1981/82:43 Battery of women
1981/82:85 Economic crime
1981/82:187 Pornography

1976/77:104 Conversion of fines
1978/79:212 Youth prison abolished
1980/81:1 Prison regime
1980/81:44 Prison two weeks
1981/82:153 Parole
1980/81:46 Internment abolished

1982-1991 Social democratic

1982/83:141 Drugs
1983/84:135 Prison regime
1983/84:105 Sex crimes
1984/85:116 Pornography
1987/88:71 Consumption of drugs
1987/88:120 Recidivism
1987/88:137 Battery of women

1982/83:85 Half time parole
1982/83:90 Conversion of fines
1986/87:106 Contract treatment
1986/87:112 Pre-trial detention
1989/90:2 Drink-driving

1991-1994 Centre right

1991/92:35 Sex with children
1992/93:4 Parole
1992/93:141 Assault, threats etc.
1992/93:142 Consumption of drugs
1993/94:44 Drink-driving
1993/94:101 Hate crimes

1991/92:109 Community service
1993/94:184 Electronic supervision

1994-2006 Social democratic

1996:97:135 Witness threats etc.
1997/98:55 Abuse of women
1997/98:55 Buying sex
1997/98:96 Parole
1997/98:97 Criminal records etc.
1998/99:43 Drugs while driving
1999/00:109 Insider trading
1999/00:124 Smuggling
2001/02:124 Trafficking, sex.
2002/03:138 Graffiti
2004/05:45 Rape
2005/06:177 Special powers

2001/02:126 Restorative justice
2004/05:34 Electronic supervision

2006-2012 Centre right

2007/08:97 Drink-driving
2007/08:163 Special powers
2008/09:118 Murder
2008/09:141 Grooming
2009/10:50 Statue of limitation
2009/10:70 Child pornography
2009/10:105 Drug testing children
2009/10:147 Serious violent crimes
2009/10:152 Trafficking
2010/11:45 Stalking
2010/11:77 Buying sex

2009/10:191 Criminal records

Source: von Hofer & Tham, 2013.

30The tableau shows increases as well as decreases in the use of penal law since the late 1960s. Not only has the number of criminalizations and penalizations increased with successive governments but the examples of de-criminalization and de-penalization have more or less disappeared. The trend has for the most part been followed irrespective of the political complexion of the government of the time. However, center-right governments have been more active in expanding penal law than the Social Democratic governments.

31Two further examples can be provided to show how the increase in imprisonment is the result of an active construction of reality by governments and political parties. After the Second World War, there was a sharp increase in theft offences in Sweden. And in the 1960s, the prison population was still dominated by individuals sentenced for theft crime. Crimes against the person, e.g. crimes of violence and sex offences, accounted for one-tenth of the prison population and drug crimes for no more than a few percent. Today these latter two types of crime account for almost two-thirds of the prison population. Looking first to drug crimes, Figure 9 shows the trend in the number of years in prison awarded by the courts since 1973.

Figure 9. Sum of years of prison time awarded by courts of first instance in drug cases in Sweden, 1973-2011

Figure 9. Sum of years of prison time awarded by courts of first instance in drug cases in Sweden, 1973-2011

Source: von Hofer & Tham, 2013.

  • 22 H. Tham, “The Issue of Criminalization of Drug Use in Sweden”, Nordic Studies on Alcohol and Drugs,(...)

32Drug use became a public issue in Sweden in the 1960s and its significance has escalated since that time. Sweden has become one of the hawks of European drug policy, with (relatively speaking) very long prison sentences and with the criminalization of even the consumption of drugs per se. It cannot however be shown that this high level of punitiveness has led to a decrease in the seriousness of problematic drug use in Sweden by comparison with countries favoring a less harsh drug policy regime. Problematic drug use and drug-related mortality is not lower in Sweden than the European average22. The imprisonment rate is a function of the political slogan proclaimed by the Swedish Parliament, “Sweden, a drug free society”.

Figure 10. Sum of years of prison time awarded by courts of first instance in cases involving crimes of violence and sex offences, 1973-2011

Figure 10. Sum of years of prison time awarded by courts of first instance in cases involving crimes of violence and sex offences, 1973-2011

Source: von Hofer & Tham, 2013.

33Figure 10 presents the development over the same period of the number of years of prison time awarded by courts for crimes of sex and violence. The increase has been quite sharp and these crimes now account for one-third of all prison inmates.

  • 23 H. Tham, “The Emergence of the Crime Victim. Sweden in a Scandinavian Context”, In M. Tonry & T. La (...)
  • 24 M. Aebi, B. Aubusson de Cavarlay, G. Barclay et ál., European Sourcebook of Crime and Criminal Just (...)

34The increase in years of prison time awarded for crimes of violence and sex offences is also reflected in the police statistics, i. e. in crimes reported to the police. In this sense it partly reflects a changing cultural understanding of the individual’s right to physical and sexual integrity. However, it is also an effect of an alarmist presentation of the trend in violence on the part of politicians and the media, of pressure from interest groups and of the active use of penal legislation. The current parties of government have claimed that Sweden is marked by an increasing level of brutality. The crime victims’ movement and the issue of men’s violence against women have clearly influenced penal legislation23. Levels of registered rape have increased with changes in the sex crime legislation and Sweden now has the highest number of reported rapes in Europe24. Crimes of violence are also increasing according to criminal justice statistics.

35Alternative indicators like studies of self-reported criminality and victim surveys do however show a different picture for violence. A quite reliable indicator for the most serious crime of violence, homicide, is that which is based on the causes of death register. Table 3 shows the development since the turn of the century.

Table 3. Number of homicides in Sweden 1999-2012 according to the causes of death register

1999:

108

2006:

79

2000:

90

2007:

106

2001:

86

2008:

70

2002:

100

2009:

85

2003:

81

2010:

88

2004:

97

2011:

71

2005:

82

2012:

62

Source: Socialstyrelsen.

CRIMINAL POLICY AND THE LEGITIMACY OF THE STATE

36The question then remains why politicians increasingly formulate crime policy in an expansionist and punitive direction. In a recent analysis, an explanation has been formulated in terms of state legitimacy. “The nation-state is under threat. For countries like Sweden, decisions that were previously taken by politicians in parliament have now been moved to the European Union and the global market. National politicians still want to make politics, and particularly so in Sweden with her strong tradition of an interventionist welfare state. Moral issues, including law and order, become tempting as a means of demonstrating concern and action […].”

  • 25 V. Barker, “Global Mobility and the Penal Order: Criminalizing Migration. A View from Europe”, Soci (...)
  • 26 D. Garland, The Culture of Control: Crime and Social Order in Contemporary Society, Oxford, Oxford (...)
  • 27 R. Andersson, “Tryggare kan ingen vara – en svensk kriminalpolitik för 2010-talet?”, In T. Hjort, P (...)
  • 28 H. Von Hofer & H. Tham, “Punishment in Sweden: A Changing Penal landscape”, In V. Ruggeiro & M. Rya (...)

37“Geographical boarders and national identities have become increasingly diffuse as a result of migration and eu decisions. Tough measures against illegal immigrants and foreign criminals may also be perceived as a means of strengthening national sovereignty25. The threat from abroad is also clearly demonstrated in the rise to prominence of ‘serious international organized crime’ as a political and public issue in Sweden. This notoriously diffuse and elusive phenomenon constitutes a perfect motivation for expanding penal and procedural law and the powers of the police. In the process of bifurcation in criminal policy26 serious crimes, and particularly serious organized crimes, are those that remain the preserve of the state once everyday crimes have been assigned to the guardianship of the local community and responsible citizens27. When welfare state ambitions crumble, the state will try to (re-)establish its legitimacy through law-and-order”28.

38Criminal policy and imprisonment are also used to justify the shift in Sweden in the direction of a neo-liberal policy. Structural explanations are replaced by explanations couched in terms of individual responsibility. Individuals are portrayed as choosing to commit or abstain from crime regardless of resources or life-chances. The neo-liberal message of the agent who makes his or her own decision is: “You get what you deserve”.

THE FUTURE?

39What then might we expect to see in the near future as regards the development of criminal policy and imprisonment in Sweden, in the Scandinavian countries and also in Western Europe? There are as always different tendencies and possibilities. Some conditions might point towards a decrease in the use of imprisonment. Imprisonment has become increasingly expensive. Keeping someone in a Swedish prison for one year costs 100,000 Euro (250 million cop). European states struggling with financial difficulties might not prioritize investments in prisons. In the usa, the budget question has now clearly entered the debate about the sharp rise in imprisonment.

  • 29 H. Von Hofer & H. Tham, “Punishment in Sweden: A Changing Penal landscape”, op. cit., pp. 33-57.

40As has been noted, there are also signs of not only stagnating, but also declining crime trends in Western Europe. With the risk of contradicting the statement that imprisonment and crime do not seem to follow each other in a longitudinal perspective, the effects of a crime drop should not be excluded. Western prison populations are aging. Successive birth-cohorts in Sweden show decreasing levels of criminal activity29. Even if the long-term development in imprisonment in Sweden is one of increase the prison figures have actually declined by one-quarter over the course of the last decade. The drop noticed might reflect the long-term decrease in criminal activity.

  • 30 R. Van Schwaningen, “Reversing the Punitive Turn: the Case of the Netherlands”, In Daems, T., Van Z (...)
  • 31 E. Larrauri & J. Jacobs, “A Spanish Window on European Law and Policy on Employment Discrimination (...)

41However, even if there were to be a shift towards a downward turn in levels of imprisonment, it doesn’t necessarily mean that this would represent a reversal of the “punitive turn”. We should be aware of the possible development of alternative means of control leading to changes in the qualitative aspects of control30. There has recently been a marked increase in the use of criminal record checks for employment discrimination, for example31, and in the use of cctv and the electronic supervision of convicted individuals.

42As has been noted, the drug policies of different states have clearly contributed to increasing the size of prison populations. It is possible that this policy could now work in the opposite direction. Various signs of a possible move towards more liberal drug policies have appeared. Latin America is in the forefront with a number of former presidents and other senior politicians having criticized the existing zero tolerance model and with Uruguay legalizing cannabis.

  • 32 T. Daems, D. Van Zyl Smit & S. Snacken (eds.), European Penology? ibíd.

43However, other political circumstances do point in the direction of continued increases in imprisonment. The European Union finds itself in the midst of both an economic and political crisis. The question, then, is whether not only national politicians but also politicians at the European Union level will resort to law and order as a means of trying to restore legitimacy. Differences are also becoming increasingly marked between the Council of Europe, with its emphasis on human and prisoners’ rights, and the penal expansion of the European Union32. Imprisonment might rise in Europe in spite of signs of decreasing crime.

  • 33 A. De Giorgi, “Prison and Social Structures in Late-Capitalist Societies”, In D. Scott (ed.), Why P (...)

44The large number of imprisoned foreigners can partly be seen as a result of the politics of the European Union. Three out of every ten prisoners in Western Europe are of foreign nationality. The Union increasingly protects its assets and its boarders by means of central registers, police co-operation, and legislation. The “illegalisation and criminalistion of migrants” has increasingly become a characteristic of Europe33.

  • 34 T. Lappi-Seppälä, American Exceptionalsim in a Cross Comparatve Perspective, op. cit.
  • 35 H. Tham, “Law and Order as a Leftist Project? The Case of Sweden”. Punishment & Society, vol. 3, n. (...)

45Finally, there is the more general political and structural environment in which criminal policy is formulated. Neoliberalism is accompanied by, and legitimizes, inequality. Economic inequality varies with imprisonment. In Western European and Anglophone countries, higher levels of income inequality, lower social expenditures and less trust in authorities and fellow citizens are in a cross-cultural perspective associated with higher levels of imprisonment34. Without claiming that the available evidence is conclusive, there is also support for the existence of such a relationship with both criminal policy and imprisonment in a longitudinal perspective in Scandinavia35.

  • 36 J. Rydgren, “Political Protest and Ethno-Nationalist Mobilization. The Case of the French Front Nat (...)

46The trend towards increasing levels of inequality cannot be excluded as a contributory factor in relation to the rise of right wing populist parties. The increasing inequality and marginalization in Europe has been proposed as an explanation for this phenomenon. The losers in the post-industrial economy disproportionally comprise the electoral supporters of the right wing populist parties36. These parties now exist in most European countries. They all have law and order as a central issue. In the newly formed conservative government in Norway, the right wing populist Progressive Party was given the Ministry of Justice.

  • 37 R. Wilkinson, The Impact of Inequality. How to Make Sick Societies Healthier, London, Routledge, 20 (...)

47The question is why there should be a relationship between imprisonment and inequality. The British sociologist Richard G. Wilkinson37 explores the question in his book The Impact of Inequality in relation to questions of public health. He argues that income inequality leads to an increased distance between different groups, to more dominance and subordination, and to a shift towards anti-social values resulting in poorer social relations and increases in illness and mortality.

  • 38 V. Barker, The Politics of Imprisonment. How the Democratic Process Shapes the Way America Punishes (...)
  • 39 N. Christie, A Suitable Amount of Crime, New York, Routledge, 2004.

48In an analysis of the sharp increase in imprisonment in the usa, Vanessa Barker argues that this can be seen as an effect of a de-democratization of the country. Barker also found support for this thesis in a comparison of the trends in imprisonment between different states, with civic engagement and a democratic spirit being associated with less imprisonment, whereas more imprisonment was found in states marked by populism and alarmism38. Taking the democratic idea further, Nils Christie argues for a society of local communities made up of equals, in which face to face-relationships facilitate other solutions to conflict than criminal justice and imprisonment39.

49There is certainly sufficient evidence pointing to the importance of inequality in explaining the development of criminal policy and imprisonment. The relationship deserves more attention from criminologists.

Bibliographie

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Andersson, R. “Tryggare kan ingen vara – en svensk kriminalpolitik för 2010-talet?”, In T. Hjort, P. Lalander & R. Nilsson (Eds.), Den ifrågasatte medborgaren – om utsatta gruppers förhållande till välfärdssystemen, Växjö, Linnéuniversitetet, 2010, pp. 139-163.

Ask, B. “Skärpta straff för våldsbrott”, Press conference 2010-01-28, Ministry of Justice, Sweden, 2010.

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Melossi, D. “The Processes of Criminalization of Migrants and the Question of the European Union as a ‘land of Immigration’”, In Daems, T., van Zyl Smit, D. & Snacken, S. (eds.), European Penology?, Oñati International Series in Law and Society, Oxford, Hart, 2013, pp. 125-144.

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Notes

2 K. Krajewski, “Penal developments in Poland: New or old Puitiveness?”, In Daems, T., Van Zyl Smit, D. & Snacken, S. (eds.), European Penology?, Oñati International Series in Law and Society, Oxford, Hart, 2013, pp. 311-388.

3 T. Lappi-Seppälä, American Exceptionalsim in a Cross Comparatve Perspective, National Research Institute of Legal Policy, Finland, Mimeo, 2013.

4 L. Westfeldt, Brott och straff I Sverige och Europa. En studie i komparativ kriminologi, PhD-thesis, Stockholm, Stockholm University, Department of Criminology, 2001.

5 M. Aebi & A. Linde, “Is There a Crime Drop in Western Europe?”, European Journal of Criminal Policy and Research, vol. 16, 2010, pp. 251-277.

6 L. Westfeldt, Brott och straff I Sverige och Europa. En studie i komparativ kriminologi, PhD-thesis, Stockholm, Stockholm University, Department of Criminology, 2001.

7 J. Van Dijk, J. Van Kesteren & P Smit, Criminal Victimization in International Perspective. Key findings from the 2004-2005 icvs and eu ics, Den Haag, Boom Juridische Uitgevers, 2007.

8 M. Aebi & A. Linde, “Is There a Crime Drop in Western Europe?”, op. cit., pp. 251-277.

9 L. Westfeldt, Brott och straff I Sverige och Europa. En studie i komparativ kriminologi, op. cit.

10 T. Lappi-Seppälä, American Exceptionalsim in a Cross Comparatve Perspective, op. cit., p. 18.

11 G. Rusche & O. Kirchheimer, Punishment and Social Structure, New York, Russel & Russel, 1939/1967, p. 5.

12 Swedish Penal Code, Ch. 1, § 7

13 Swedish Penal Code, Ch. 29, § 1.

14 B. Ask, “Skärpta straff för våldsbrott”, Press conference 2010-01-28, Ministry of Justice, Sweden, 2010.

15 F. Balvig, Danskernes syn på straf. København: Advokatsamfundet, 2006, p. 43.

16 F. Balvig, H. Gunnlaugsen, K. Jerre et ál., “Den nordiske retsbevidsthedsundersøgelse”, Nordisk Tidsskrift for Kriminalvidenskab, vol. 97, n.° 3, 2010, p. 236.

17 F. Balvig, H. Gunnlaugsen, K. Jerre et ál., “Den nordiske retsbevidsthedsundersøgelse”, Nordisk Tidsskrift for Kriminalvidenskab, vol. 97, n.° 3, 2010, p. 249.

18 Morgunbladiðið, Hæstirettúr og kynferðisbrot, 2007-09-15.

19 F. Balvig, Danskernes syn på straf. op. cit.

20 K. Jerre, A Public’s Sense of Justice in Sweden-a Smorgasbord of Opinions, PhD-thesis, Stockholm, Stockholm University, Department of Criminology, 2013.

21 F. Balvig, H. Gunnlaugsen, K. Jerre et ál., “Den nordiske retsbevidsthedsundersøgelse”, op. cit., pp. 232-250.

22 H. Tham, “The Issue of Criminalization of Drug Use in Sweden”, Nordic Studies on Alcohol and Drugs, vol. 26, n.° 4, 2009, pp. 432-435.

23 H. Tham, “The Emergence of the Crime Victim. Sweden in a Scandinavian Context”, In M. Tonry & T. Lappi-Seppällä (eds.), Crime and Justice in Scandinavia, Crime and Justice, 40, in collaboration with Anita Rönneling and Lise-Lotte Rytterbro, 2011.

24 M. Aebi, B. Aubusson de Cavarlay, G. Barclay et ál., European Sourcebook of Crime and Criminal Justice Statistics-2010, Forth edition, Den Haag, Boom Juridische uitgevers, 2010, p. 46.

25 V. Barker, “Global Mobility and the Penal Order: Criminalizing Migration. A View from Europe”, Sociology Compass, vol. 6, n.° 2, 2012, p. 118.

26 D. Garland, The Culture of Control: Crime and Social Order in Contemporary Society, Oxford, Oxford University Press, 2001.

27 R. Andersson, “Tryggare kan ingen vara – en svensk kriminalpolitik för 2010-talet?”, In T. Hjort, P. Lalander & R. Nilsson (eds.), Den ifrågasatte medborgaren – om utsatta gruppers förhållande till välfärdssystemen, Växjö, Linnéuniversitetet, 2010, pp. 139-163.

28 H. Von Hofer & H. Tham, “Punishment in Sweden: A Changing Penal landscape”, In V. Ruggeiro & M. Ryan (eds.), Punishment in Europe. A Critical Anatomy of Penal Systems, Houndmills, Basinstocks, Palgrave / Macmillan, 2013, pp. 33-57.

29 H. Von Hofer & H. Tham, “Punishment in Sweden: A Changing Penal landscape”, op. cit., pp. 33-57.

30 R. Van Schwaningen, “Reversing the Punitive Turn: the Case of the Netherlands”, In Daems, T., Van Zyl Smit, D. & Snacken, S. (eds.), European Penology?, Oñati International Series in Law and Society, Oxford, Hart, 2013.

31 E. Larrauri & J. Jacobs, “A Spanish Window on European Law and Policy on Employment Discrimination Based on Criminal Record”, In Daems, T., van Zyl Smit, D. & Snacken, S. (eds.), European Penology?, Oñati International Series in Law and Society, Oxford, Hart, 2013, pp. 293-310.

32 T. Daems, D. Van Zyl Smit & S. Snacken (eds.), European Penology? ibíd.

33 A. De Giorgi, “Prison and Social Structures in Late-Capitalist Societies”, In D. Scott (ed.), Why Prison?, Cambridge, Cambridge University Press, 2013. D. Melossi, “The Processes of Criminalization of Migrants and the Question of the European Union as a ‘land of Immigration’”, In Daems, T., Van Zyl Smit, D. & Snacken, S. (eds.), European Penology?, ibíd., pp. 125-144.

34 T. Lappi-Seppälä, American Exceptionalsim in a Cross Comparatve Perspective, op. cit.

35 H. Tham, “Law and Order as a Leftist Project? The Case of Sweden”. Punishment & Society, vol. 3, n.° 3, 2001, pp. 409-426. T. Lappi-Seppälä, American Exceptionalsim in a Cross Comparatve Perspective, op. cit.

36 J. Rydgren, “Political Protest and Ethno-Nationalist Mobilization. The Case of the French Front National”, PhD-thesis, Stockholm, Stockholm University, Department of Sociology, 2002.

37 R. Wilkinson, The Impact of Inequality. How to Make Sick Societies Healthier, London, Routledge, 2005.

38 V. Barker, The Politics of Imprisonment. How the Democratic Process Shapes the Way America Punishes Offenders, Oxford, Oxford University Press, 2009.

39 N. Christie, A Suitable Amount of Crime, New York, Routledge, 2004.

Table des illustrations

Titre Figure 1. Number of prisoners, including remand prisoners, per 100,000 of population, 1921-2011. Stock data
Légende Source: Official Swedish Criminal Statistics. von Hofer & Tham, 2013.
URL http://books.openedition.org/uec/docannexe/image/1038/img-1.jpg
Fichier image/jpeg, 104k
Titre Figure 2. Number of prisoners, including remand prisoners, in Denmark, Finland, Norway and Sweden, per 100,000 of population, 1950-2010. Stock data
Légende Source: von Hofer et ál., 2012.
URL http://books.openedition.org/uec/docannexe/image/1038/img-2.jpg
Fichier image/jpeg, 112k
Titre Figure 3. All criminal code offences reported to the police in Denmark, Finland, Norway and Sweden, per 100,000 of population, 1950-2010
Légende Source: von Hofer et ál., 2012.
URL http://books.openedition.org/uec/docannexe/image/1038/img-3.jpg
Fichier image/jpeg, 120k
Titre Figure 4. The general sense of justice in Sweden. Proportion of the respondents in the telephone interviews agreeing or disagreeing with penal policy statements
Légende Source: Jerre & Tham, 2010
URL http://books.openedition.org/uec/docannexe/image/1038/img-4.jpg
Fichier image/jpeg, 88k
Titre Figure 5. The informed sense of justice in Sweden Proportion of the respondents in the postal survey choosing jail sentences by comparison with the assessments of professional judges’
Légende Source: Jerre & Tham, 2010
URL http://books.openedition.org/uec/docannexe/image/1038/img-5.jpg
Fichier image/jpeg, 92k
Titre Figure 6. The informed sense of justice in Sweden. Number of prison months awarded by the respondents in the postal survey by comparison with the assessments of professional judges
Légende Source: Jerre & Tham 2010
URL http://books.openedition.org/uec/docannexe/image/1038/img-6.jpg
Fichier image/jpeg, 84k
Titre Figure 7. The concrete sense of justice in Sweden. Number of prison months awarded by the focus group participants before and after viewing a filmed court trial and participating in a moderated discussion, by comparison with the assessments of professional judges
Légende Source: Jerre & Tham, 2010
URL http://books.openedition.org/uec/docannexe/image/1038/img-7.jpg
Fichier image/jpeg, 84k
Titre Figure 8. Proportion of participants in a telephone poll, a postal survey and a focus group study who wanted longer prison sentences than would be awarded in accordance with court practice in Sweden
Légende Source: Jerre, 2013
URL http://books.openedition.org/uec/docannexe/image/1038/img-8.jpg
Fichier image/jpeg, 72k
Titre Figure 9. Sum of years of prison time awarded by courts of first instance in drug cases in Sweden, 1973-2011
Légende Source: von Hofer & Tham, 2013.
URL http://books.openedition.org/uec/docannexe/image/1038/img-9.jpg
Fichier image/jpeg, 88k
Titre Figure 10. Sum of years of prison time awarded by courts of first instance in cases involving crimes of violence and sex offences, 1973-2011
Légende Source: von Hofer & Tham, 2013.
URL http://books.openedition.org/uec/docannexe/image/1038/img-10.jpg
Fichier image/jpeg, 88k

Auteur

Profesor em. Departament of Criminology Stockholm University. Stockholm. Sweden

© Universidad externado de Colombia, 2014

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