Beyond Popular Punitiveness

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Copyright SAGE Publications

London, Thousand Oaks, CA
and New Delhi.
www.sagepublications.com
1462-4745; Vol 7(3): 243258
DOI: 10.1177/1462474505053828
PUNISHMENT
& SOCIETY
Beyond populist
punitiveness?
NEIL HUTTON
University of Strathclyde, UK
Abstract
Much of the survey data on public knowledge and attitudes to sentencing and punishment gathered over recent years have suggested that the public in western jurisdictions
support harsher punishment and have diminishing confidence in the criminal courts.
The results of research on the same issues using focus groups, deliberative polls or other
methods which provide more information or allow respondents to discuss their views
with others, appear to suggest that these punitive attitudes become more moderate as
well as more complex and contradictory. Recent research in Scotland has produced
similar results. What do these results mean? Are the public punitive or not?
The argument presented here is that punitive attitudes exist alongside more rational
and more reflective attitudes. Part of the explanation for this is that attitudes are, at
least in part, an artefact of the methodology used to discover them. This does not mean
that they are not real and substantial, but rather that public opinion is much more
nuanced and contradictory than it appears from survey research. This interpretation
raises different challenges for political leadership and policy making.
Key Words
public attitudes punishment sentencing
INTRODUCTION
Over the last 20 years or so, most western jurisdictions have experienced a punitive
turn. The two main manifestations of this have been rising prison populations, even in
European jurisdictions which have historically been able to sustain relatively low rates
of incarceration (Garland, 2000; Frase, 2001; ODonnell, 2004; Pakes, 2004), and the
politicization of crime and punishment which has seen political parties trying to portray
themselves as the party of law and order.1 Although crime rates have either fallen or
remained steady and despite the considerable body of evidence which shows that
punishment has very little impact on crime rates, whether by deterrence (von Hirsch
et al., 1999) or incapacitation (Zimring, 1995), judges and politicians seem to believe
that the public demand more severe punishment to deal with what they perceive to be
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PUNISHMENT AND SOCIETY 7(3)
a worsening crime problem. Bottoms (1995) has characterized this as populist punitiveness.
Both politicians and judges appear, in their different ways, to be responding to a
perceived demand from the public for tougher sentencing. This article sets out to
examine the evidence about public knowledge and attitudes to punishment based on
an analysis of a recent study of public knowledge and attitudes in Scotland (Anderson
et al., 2002). The results of the Scottish research are similar to the results of comparable
research in other jurisdictions. This article proposes a different interpretation of this
familiar evidence. My argument is that the evidence for the existence of a punitive mood
is not as clear as previous interpretations of similar research data have suggested. There
are two main issues explored. First, analysis of data gathered by different methodologies suggests that public opinion on punishment is not clear, one-dimensional or stable
but rather, contradictory, nuanced and fragile. Second, the methodologies are not
neutral tools used to gather independent data. The methodologies have at least some
impact on the nature of the data that they generate.
The article begins with a discussion of these methodological issues, proceeds with a
brief analysis of the Scottish data and concludes with a discussion on the issue of representing moral complexity.
METHODOLOGY ADOPTED FOR THE SCOTTISH STUDY
This essay reports some of the main findings of a piece of research conducted for the
Justice 1 Committee of the Scottish Parliament. There were three parts to this study.
NFO System Three carried out a questionnaire survey of a sample of 700 people. The
results are accurate to within +/ 4 per cent for a response by 50 per cent of all those
interviewed at the 95 per cent confidence interval. Interviews were carried out in-home
by trained interviewers and lasted on average 20 minutes. Although this is a relatively
small sample for this sort of research, and the possibility of sub-group analysis is therefore limited, it was felt that the sample was adequate to provide a broad indication of
knowledge and attitudes across the population as a whole. These survey data were
supplemented by nine focus groups of between 810 people. The focus groups were
segmented according to age, sex and socio-economic group to provide a wide range of
views and experiences while ensuring that each group was reasonably homogenous
(Anderson et al., 2002).
The final part of the study was a civic participation event facilitated for the Parliament by Inter-ed. Ltd. The 86 participants2 (none of whom had been involved in the
other parts of the research) were asked to complete short sentencing exercises before
attending the day-long seminar. They were then given short presentations by experts
on aspects of crime and punishment along with more detailed information on the case
studies that they had worked on earlier. There followed further seminars and open-space
workshops. The broad aim was to find out if citizens views on sentencing would change
as they were presented with different types of information (Inter-ed. Ltd, 2002).
Although this study was not explicitly designed as a deliberative poll the approach
shares much in common with that technique (Fishkin, 1995). Indeed, as this study was
focused on one issue (sentencing) and lasted a day rather than a weekend, it followed
some of the recommendations of Hough and Park (2002) for revising deliberative poll
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HUTTON Beyond populist punitiveness?
methodology to make this approach a more cost-effective addition to the means of

measuring public attitudes to crime and punishment issues.
The three different methodologies were chosen because previous research had shown
that the focus group and deliberative poll methodologies generated different data
(Doble, 1997, 2002; Doble and Immerwahr, 1997; Roberts, 1997; Roberts and Hough,
2002). The study proceeded on the assumption that in order to get a full understanding of public attitudes, it was important to use a range of methods. Each method has
strengths but also has its own limitations.
METHODOLOGY: MEASUREMENT OR CONSTRUCTION?
One major strength of a survey based on a random sample, is that the results can be
applied generally across the population. However, this is only a strength if the data can
be held to be a faithful representation of public views. One weakness of survey methodology is that the questions may not uncover pre-existing views but play some part in
constructing the views that they purport to report neutrally. Zaller (1992) has argued
that people construct opinion statements in answer to survey questions. These statements are constructed from material that is immediately available to them, at the top
of their heads. People have attitudes but these are not fixed but flexible and tentative
and the method used to measure these attitudes will have an impact on the attitudes
that are measured. This helps to understand why public attitudes to punishment appear
to vary according to the method used to measure them. A broad abstract survey question
such as Do you think the sentencing of the courts is too lenient? produces a positive
answer. When respondents are presented with more detailed information on particular
cases, their choice of sentence is close to that which would have been chosen by a
sentencer. When deliberative poll methods, which allow the public to discuss the issues
are used, attitudes to punishment appear to become more liberal (Hough and Park,
2002; Mirrlees-Black, 2002).
Stalans (2002) argues that the social psychological literature demonstrates that attitudes are dependent on a range of factors including the structure of attitude in memory,
and the ways in which the public process information. Richard Sparks has argued that
survey methods tend to treat punitiveness as a disposition which one can have more or
less of. This conceals the more complex and contradictory views that appear when more
discursive methods of social enquiry are employed (Sparks, 2002). It may be that the
method of enquiry can account for some of the apparent difference in attitudes collected
by survey and more discursive methods. However, the differences might also be
produced by the discursive forms in which the issues are presented to the respondents.
INDIVIDUALIST AND STRUCTURALIST ACCOUNTS
In a review article of Austin Sarats recent book about capital punishment in the United
States, Garland discusses the differences between individualist and structuralist accounts
of criminal actions (Garland, 2002). Individualist accounts tell a particular moral story
of a criminal event. This story apportions blame, judges responsibility and allocates
punishment to an individual offender. A structuralist account describes the conditions
that gave rise to the event, and events like it. The story concerns the ways in which
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opportunities are unevenly structured along the lines of race, gender and class, the ways
in which upbringing, early childhood experiences, educational failure and so forth can
channel people into a criminal career. Garland points out that these two accounts have
their own logics that are quite incompatible. We find it difficult to reconcile the idea
that an individual offender makes rational choices with the idea that social actions are
the product of biography, history and situation. Garland argues that courts privilege an
individual account. The task of the court is to allocate guilt, blame and punishment. A
structuralist account of crime that examines patterns of offending behaviour and the
possibility of reform is more likely to be found in a department of justice or the policies
of a criminal justice social work department.
Asking survey respondents whether they think courts are too lenient, prisons effective or crime rates rising, is likely to generate structuralist accounts. These accounts
describe patterns of behaviour. On the other hand, presenting respondents with a case
study, promotes an individual account that attempts to produce a substantively just
outcome for the individual case. Garlands point is that these two attitudes reflect two
different types of moral account, one that deals with structuralist accounts of how the
system operates and one that tries to find a just resolution for an individual case. These
co-exist uneasily and there is no way of providing a resolution for the contradictions.
It may be that part of the difference between attitudes recorded by surveys and those
recorded by more discursive forms of enquiry can be accounted for by the different
accounts typically presented. For example, a focus group discussion about the aims of
punishment might generate more punitive responses than discussion about the appropriate sentence for a particular single case.
This discussion suggests that data need to be interpreted carefully with due attention
to the potential impact of method on outcomes. Responses are likely to be influenced
by the method of inquiry, the degree of information provided and the framing of the
accounts of crime and punishment used.
With respect to the Scottish study reported in the following section my argument is
that analysis of the different data shows that public opinion about sentencing and
punishment is nuanced and contradictory. Punitive attitudes exist alongside more liberal
views, perspective varies from the global to the local and discussion about individual
cases generates different discourses from discussion of the practices of agencies and institutions. The data generated from the civic participation exercise are not more truthful
than the data generated by the survey. While it may demonstrate that people express
less punitive views when discussing individual cases in the context of better quality
information, it does not mean that the punitive views expressed by survey respondents
are any less real. This argument is further developed in the final section of the article.
There are then at least three characteristics of methodological approaches to the
measurement of public attitudes which appear to have an impact on the nature of the
responses generated: the questioning technique (survey questionnaire/focus group/
deliberative poll); the discursive form in which the issue is presented (individualized or
structural); and the nature and extent of additional information presented at the time
of the research. Survey questions, issues framed in a structural way and the absence of
information tend to generate more punitive responses, while methods which allow
respondents to interact and engage in dialogue, issues framed in individual cases and
the provision of more information, tend to generate more liberal attitudes.
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In the following section, the data from the Scottish research are analysed in the light
of these methodological reflections.
KNOWLEDGE AND VIEWS ABOUT CRIME AND THE CRIMINAL

JUSTICE SYSTEM
Data from the Scottish survey show that there is a high level of interest in crime and
justice with 88 per cent of respondents either fairly or very interested in the issues.
However, most claimed to know not very much or nothing at all about the level of
crime (54%, 5%), what happens to offenders in court (61%, 9%) or in prison (60%,
23%). This confirms the findings of research elsewhere which shows high levels of ignorance about crime and punishment (Doob and Roberts, 1988; Indermaur, 1990; Tarling
and Dowds, 1997; Hough and Roberts, 1998; Mattinson and Mirrlees-Black, 2000;
Russell and Morgan, 2001). The research shows that people are well aware of their lack
of knowledge of these issues, although they are obviously not aware of the nature or
extent of their ignorance. However, this lack of knowledge does not stop them from
forming and expressing opinions. Public knowledge and opinion about criminal justice
are based upon collective representations rather than accurate information . . .
(Garland, 2001: 158).
Seventy-five per cent of the sample thought that crime had risen over the last five
years when in fact it has fallen steadily over the last ten years. There were three specific
issues that arose in the search for an explanation for this perceived rise in crime: violence,
drugs and youth offending. When asked to guess the proportion of crimes recorded by
the police that involve violence (correct answer 6 per cent) the average response was
54 per cent.
The focus group data showed agreement that violence was not only increasingly
prevalent but that it was more unpredictable and that victims were more likely to be
women and the elderly. A recurrent theme in the discussions was that the more orderly
violence of previous years, a fair fight between consenting opponents, had been
replaced by a less predictable and more vicious form of violence perpetrated on innocent
strangers and much of it related to the desperate needs of drug addicts. This in turn is
perceived to be related to an increased lawlessness of young people who are seen to pose
a general threat of violence and disorder.
Seventy-nine per cent of respondents felt judges were out of touch with what
ordinary people think and 70 per cent thought that sentencing was too lenient. This
confirms the findings of other research (Roberts and Stalans, 1997; Hough and Roberts,
1998; Mattinson and Mirrlees-Black, 2000) including the only previous research
conducted as a small part of the 1993 Scottish Crime Survey (Anderson and Leitch,
1996). There was little confidence expressed in the effectiveness of the courts.
THE SENTENCING DECISION
The survey respondents were presented with two cases. In each case brief details were
given followed later by additional information. The aim was to examine changes in
respondents choice of sentence after the provision of further information. For reasons
of space the first case will be discussed here.
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The basic information was that John, a first offender aged 18, entered a house
through an open window and stole a video. The additional information was that the
video had been recovered and that John had a drug habit for which he wanted to seek
help.
Based on the limited version of the scenario the respondents were asked what should
happen to John. The most commonly selected disposal was a Community Service Order
(35%), followed by Compensation (29%), Fine (27%), Probation (21%) and Prison
(20%) (multiple responses were allowed). However when the additional information
was added, 51 per cent selected a Drug Treatment and Testing Order (DTTO), even
though there was a relatively low awareness of the availability of this sanction. The focus
group discussions suggested that prison was not appropriate because he was a first
offender, and an addict who wanted treatment. The strong feelings from the focus
groups were that if he received treatment he would be unlikely to re-offend. Respondents were concerned with the effectiveness of sentencing in reducing offending and
making the community safer.
This scenario suggests that the public are not too far away from the judiciary in
sentencing. (This case would have been likely to produce a sentence of probation or
perhaps a fine.) It demonstrates that when discussion focuses on an individual case,
punitive attitudes are less likely to be generated. It also suggests that the public are
prepared to support constructive community-based sentences, which stand the best
chance of reducing offending. The choice of the DTTO, when the drug habit information is provided, suggests that the public look for effective punishment that will have
an impact on offending behaviour. Indeed when respondents were asked in the survey
about the aims of sentencing in this case, the most significant support was for changing
Johns attitudes and behaviour so he is less likely to commit more crime. There was more
general support for rehabilitative and reparative aims than for incapacitation or simple
retribution. This supports Roberts conclusions that there is considerable support for
community sanctions which can be shown to achieve constructive outcomes, in this case
victim compensation and crime reduction through a change in the offender (Roberts,
2002). Incapacitation and retribution were the least popular aims although these still
received positive support from at least 75 per cent of respondents. This suggests that the
Scottish public share the judiciarys support for the full range of aims of sentencing, but
also demonstrates that their favoured approaches are those which offer constructive and
positive outcomes in terms of victim compensation and crime reduction.
Although there was strong support for changing the offenders attitudes and behaviour, there was limited confidence that this could be achieved, 43 per cent agreed that
offenders can be helped to change their attitudes and behaviour, but 33 per cent
disagreed. Despite the publics belief that the courts are too lenient and that tougher
sentencing is required, people are not unanimous that this is an effective way to stop
offending. Although 55 per cent of respondents agreed that the tougher the sentence
the less likely an offender is to commit more crime, 31 per cent disagreed.
PUNISHMENT
Eighty-three per cent of respondents said they know not very much or nothing at all
about Scotlands prisons. Half the respondents agreed that prison life is too soft and
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this received widespread support in the focus groups. However, 67 per cent of respondents thought that being put in prison punishes offenders and only 18 per cent did not
think prison was a punishment. Many people also have doubts about prisons effectiveness in preventing re-offending, particularly for less serious offenders and for drugrelated offenders. For example, 68 per cent agreed that prisons were schools for crime
and while 36 per cent said that prison was the best way to prevent re-offending, 43 per
cent disagreed.
While there is scepticism about the effectiveness of Community Service Orders in
the way they are currently administered, there is widespread support for the principle
of the disposal especially if the punishment could be made more visible to the public.
There was also wide support for reparative and mediation approaches provided these
were directed to appropriate (less serious) offenders.
When the focus groups were invited to take costs into account and presented with
information about the relative costs of imprisonment and community-based sanctions,
there was general agreement that punishment ought to be more cost-effective. Two main
means of achieving cost-effectiveness emerged: cutting the costs of imprisonment by
making the regimes more austere and making more extensive use of constructive
community-based disposals instead of short prison sentences for less serious offenders.
This supports Doobs findings in Canada (Doob, 2000).
ANALYSIS OF ONE CASE PRESENTED DURING THE CIVIC

PARTICIPATION EXERCISE (CPE)
An offender was guilty of possessing an offensive weapon in his car. In the more serious
scenario, the offender had previous convictions and the implication from the additional
detail was that he may have had the intention of using the weapon to instigate an attack.
In the less serious scenario the offender was a taxi driver who had been the victim of
robberies and the implication was that his intention was to use the weapon to defend
himself. In both cases the views of the participants about the aims of sentencing did
not vary much as additional information was presented. There was an understandably
strong emphasis on protecting the public and deterring others from offending. However
in the two scenarios, these aims were to be realized by very different sentencing options.
The fine was at each stage the most popular option. However, in the more serious
scenario imprisonment dropped behind Community Service Order as the next most
popular option. In the less serious option, when the extended case details became
known, deferred sentence moved from the least favoured to the most favoured option
and imprisonment dropped to the second least favoured. This case study shows that
there was considerable variation in the groups on their ranking of sentencing aims and
of sentencing options. The ranking of sentencing aims changed little when additional
information was presented, but the choice of sentencing options changes considerably.
Interestingly, even in the more serious scenario, imprisonment dropped in popularity.
The main finding from this part of the study is that when respondents are presented
with more detailed information which contains mitigating circumstances which make
the case seem less serious, particularly because the offender is portrayed as less culpable
for the offence, their choice of sentence changes. There is a significant movement
towards more rehabilitative sentences and away from the more punitive sanctions
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(prison, electronic monitoring, fines). This is in contrast to data from England and
Wales (Hough, 1996), where there was little support or understanding of rehabilitation.
This supports Hough and Parks view that too much credence tends to be given to the
results of polls that manage to chart only peoples unreflecting views (2002: 168). It
suggests that when faced with a very brief description of a case, people tend to imagine
this to be at the more serious end of the spectrum of such cases. Typically they will
imagine a more culpable offender, someone whom they perceive as more morally
responsible for their actions. However, even in the serious versions of the cases, the
respondents still demonstrated strong support for non-custodial sanctions. This
confirms the existence of significant support for community-based sanctions in
Scotland. A recent review of the international research literature on public attitudes to
community sanctions shows that support is growing in many jurisdictions (Roberts,
2002; see also Mayhew and van Kesteren, 2002).
One of the most interesting findings of the CPE would have to be the enthusiastic
pursuit of justice by the participants for the individual case with which they were
presented. They approached the sentencing task in a very individualized manner much
as judges would have done. There were no requests reported for information about
sentencing patterns and no concern expressed about the need for consistency. Discussion
in the workshops appears to have focused on trying to find a just sentence for the case.
This supports the view that individualized accounts elicit a distinctive response from
the public. In other words it is quite possible for punitiveness at a general or abstract
level to co-exist with more rehabilitative or restorative views at the level of particular
cases. This reflects the complexity of moral sensibilities.
NARRATIVE OF INSECURITY
The results of the study confirm much of the international research in this field. On
the one hand, the data from the survey, the focus groups and the civic participation
exercise, taken together, present what might be described as a narrative of insecurity.
People feel that crime is a growing problem. It is associated with young people on the
streets, drug use and the perceived risk to strangers of random violence. There is little
faith in the capacity of criminal justice agencies to deal with these problems, judges are
too lenient and out of touch and prisons are too soft. On the other hand, people do
expect sentencing to be constructive and to reduce offending, they support community
sanctions and when dealing with an individual case, are very sensitive to the need for
a just decision and choose sentences which are close to those which judges are likely to
select. The data from the focus groups and deliberative polls showed that, at the level
of individual cases, people were considerably less concerned to express punitive values
and more interested in seeking some form of constructive resolution that would reduce
offending.
How should we understand this ambivalence between punitive and constructive
responses? One strand might be interpreted as a specific local example of the kind of
responses to broad changes in the social and cultural conditions of late modern societies
identified by writers like Giddens (1990), Beck (1992) and Garland (2001). Crime and
its control have become a focus for general diffuse anxieties and insecurities.3 In particular citizens wish to identify and define dangerous populations which appear to need
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greater social control. The desire for order and security is a necessary part of any culture,
but this desire takes on a distinctive form under contemporary social conditions. The
respondents in this study can thus be seen as reproducing broader anxieties and fears,
which are not based on accurate information about crime and risk but on collective
representations about the dangers presented by the contemporary social world. These
are structuralist accounts that express anxieties about broad patterns of social disorder.
There were however alternative narratives that emerged from the focus groups,
particularly when they had been presented with information about actual crime rates.
There were a number of explanations offered by the respondents themselves for their
feelings of heightened anxiety. These told a different story. People accept that their views
may reflect the information they receive about crime, which they understand may be
partial or even wrong. Respondents also understand that there is more open public
discourse about certain forms of violence (e.g. against women and children), than there
was 20 years ago. This may lead to perceptions that violence is increasing when in fact
it is just more openly acknowledged. Communication media have also expanded very
rapidly over the last 20 years bringing their distinctive treatment of crime issues with
the focus on news values and entertainment (Sparks, 1992). Respondents are aware of
the need to be sceptical about media reports. Finally, some reflective respondents were
aware that their own views might have changed as they have got older, and that they
were now expressing the same anxiety about the younger generation that their own
parents had expressed about their generation 20 years ago.
The focus groups quickly generated a shared narrative of insecurity. This narrative
was built up through a discursive process. A comment would draw responses, elaborations, related examples, disagreements, new comments, etc. In other words, peoples
contributions were made in the context of a developing shared narrative. They appeared
to be reproducing a familiar story to which they could all relate, affirm, contradict and
contribute. Once this was established, and as discussions developed, individuals became
reflective and developed other narratives which were partly contradictory of the established narrative but which might best be understood as providing a richer and more
nuanced story. A general structuralist account was amended by both reflective analysis
of how these accounts might have been generated and by individual accounts and case
studies that did not necessarily fit with the more general account. The research certainly
confirms a perception of heightened anxiety and insecurity around crime issues among
the Scottish public. However this is tempered by more reflective and sophisticated
accounts that challenged elements of the dominant narrative.
REPRESENTING MORAL COMPLEXITY
These results demonstrate the difficulty of producing a clear and unambiguous

summary of what the Scottish public think about sentencing and punishment. Their
views appear to be complex and contradictory. They are dependent on the methods
used to try to measure these views, on whether the accounts used in these methods are
structural or individualized and on the nature of any additional information presented
to respondents at the time of the data collection. Their views also reproduce more
general social narratives about risk, insecurity and anxiety, which exist in a context wider
than the personal experience or knowledge of the respondents.
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Perhaps the best recent attempt to contextualize peoples talk about crime and
punishment is the recent study by Girling et al. (2000). They studied the meaningsin-use of crime and its attendant concerns, anxieties and conflicts in the ordinary
settings of peoples lives (2000: 23). Their study focused on crime rather than punishment but their analyses reveal that this distinction is of less significance to ordinary
citizens than it is to penologists and criminologists.
In speaking of crime people routinely register its entanglement with other aspects of economic,
social and moral life; attribute responsibility and blame, demand accountability and justice
and draw lines of affiliation and distance between us and various categories of them. (Girling
et al., 2000: 170)
The academic distinctions between, for example, understanding the causes of crime,
understanding the techniques of crime prevention and the normative debates about
punishment, do not appear in ordinary peoples talk. While it is legitimate for
researchers to try to separate out these discourses and to try to establish attitudes to
punishment, this will rarely be an entirely faithful representation of peoples talk. Survey
data should thus be understood within this broader context.
There is a parallel between the debates about the fear of crime and debates about
public punitiveness. In both cases, public attitudes appear to be based on ignorance or
inaccurate information. In both cases survey methodology is used to measure the
strength of a particular attitude (fear of crime, perceptions of the leniency of sentencing), which is taken as a reasonably accurate representation of the views of the public.
Girling et al. argue that the survey methodology flattens and oversimplifies peoples
responses to crime. Their ethnographic data show that peoples talk about crime is more
complex and subtle than survey data allow. Attitudes are often contradictory, talk ranges
between local events and global stories, from local incidents to global fears. Crime talk
can attempt to make sense and can express confusion. It can invoke authority and
express mistrust of authority. This kind of contradiction was very evident in the discussions of the focus groups in the Scottish study. Girling et al. situate peoples talk about
crime in a broader analysis of social change and peoples responses to these changes:
. . . like debates on nuclear safety or environmental degradation, crime is an arena of risk
politics in which questions of the trust and credibility of official agencies are placed in question,
where many voices contend for attention and which cannot secure its boundaries against
becoming involved in intractable debates about the nature and direction of social change.
(2000: 14)
Peoples talk about crime and punishment sometimes reflects anxieties and insecurities about living in the modern world. In a sense, whether their concerns are rational
or realistic is irrelevant. The narrative of insecurity that was reproduced by the respondents to this research project has much in common with some of the crime talk of the
people of Macclesfield. It is not a story which is based purely on local incidents and
knowledge, rather it is a global story, some version of which is likely to be found in
communities from Macclesfield or Glasgow (see also Doble, 2002 for evidence of similar
stories in US populations).
On this view, we should pay attention to both the punitive attitudes and also to the
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more complex and liberal attitudes. It may be that an abstracted punitiveness exists in
the public mind alongside a more subtle and justice-sensitive approach to individual
cases. It is not that the punitive views always disappear when details are presented. If
the details show that the offender is a danger to the community, then the public want
to be protected (although only by imprisonment in the most serious of cases). However,
when discussion moves from individual cases to general discussions of the breakdown
of social order, the register becomes more punitive.
CAN PUBLIC CONFIDENCE BE INCREASED BY THE PROVISION OF

INFORMATION?
Hough (1996) has suggested that the gap between peoples responses to general and
abstract questions and their responses to more detailed cases might be explained by their
ignorance of sentencing practice. This suggests that the punitiveness that the public
appear to display in response to general survey questions might be dissipated with the
provision of more information (Indermaur and Hough, 2002). It is quite rational for
people to think that sentencing is too lenient, if the information on which they base
this tells them that crime is rising and judges are incompetent.
However, people do not base their attitudes solely on information. Attitudes are
formed in response to requests for information. Attitudes are influenced by the method
of inquiry, and whether the issues are framed as structural or individualized accounts.
The attitudes also reproduce wider shared representations about crime and punishment.
The ambivalence between punitiveness and a more constructive approach to sentencing is best seen as an accurate reflection of peoples attitudes. Although punitiveness is
partly an artefact of the method of inquiry, this does not make it less real. All attitudes
are at least partly generated by the method of inquiry. Punitive and constructive
approaches co-exist.
Following Houghs argument that the provision of accurate information would
moderate the punitiveness of the public, a recent study in England and Wales attempted
to assess the effectiveness of different means of presenting information to the public
(Mirrlees-Black, 2002). The results showed that public attitudes towards criminal justice
processes did become more positive after exposure to all of the three methods used
(booklets, seminars, videos). However the study was not able to demonstrate that the
changes were due to the provision of information per se. The changes may have been
produced by the fact that participating in the study changed what was at the forefront
of their heads. In other words, the method of inquiry had an impact on the attitudes
that it was intended to measure.
The re-evaluation of the 1994 deliberative poll data by Hough and Park (2002)
showed some longer-term changes in attitudes which can be attributed to the deliberative poll. A deliberative poll might deliver some longer-term change, but how can a
deliberative poll be conducted for the whole population? It is not the information itself
which produces the change, but the context in which this information is presented and
absorbed by the respondents.
In summary, the evidence suggests that public attitudes are more complex and contradictory than survey data suggest. Attitudes to crime and punishment probably reflect,
at least in part, broader anxieties and insecurities, and are thus not directly connected
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to accurate information about crime and punishment. The techniques that are used to
collect information about attitudes also have an effect on the nature of those attitudes.
A survey method will typically reproduce elements of a broad narrative of anxiety that
is a story about broad patterns of crime and punishment, about worsening problems
and systemic failure to deal with these. More discursive methods of inquiry generate
this account as well, but they also allow contradictory narratives to emerge and in
particular allow respondents to engage in more individualist, case-based, narratives
which tend to be more oriented towards just and constructive resolutions than simply
on punishment.
It may be that, at least in the short term, there is little that can be done by state institutions to increase public confidence in judges and the courts. This lack of confidence
may be, at least in part, a reflection of the loss of faith in authority and expert knowledge more generally and not simply a response to perceived failures of criminal justice
institutions in particular. There may be little that one institution can do to reverse attitudes that reflect peoples experiences of and responses to broader social change.
However this should not be cause for despair. As Girling et al. note, a febrile politics
of law and order may be an entrenched feature of late modern societies, but these politics
have local features and are social processes that can and do change. Global analyses
should not be used as an excuse for cynicism or despair. Garland, in The culture of control
(2001), emphasizes that an attempt such as his to identify the broad characteristics of
contemporary crime and punishment, should not be read as deterministic. His analysis
is a snapshot of social processes that are continuing to change and combine residual
elements of an older order with emerging elements of some future order. It is always
important to examine the local empirical conditions in the light of the broader global
trends. More accurate information about crime and punishment, produced by state
institutions and disseminated using modern communication techniques, has an important role to play in the medium to long term in addressing and trying to shift the broader
narrative of anxiety.
The other main message from the analysis presented here, is that politicians should
approach survey results with more care. The evidence from the results presented here
and elsewhere suggest that the public are not as punitive as survey data suggest. There
is evidence of public support for more rational penal policies. There is sadly little
evidence of political leadership prepared to argue this case.
Finally, if it is accepted that the methods of inquiry in this area have a significant
impact on the data that are generated, there is an argument for changing the way we
go about collecting data on public attitudes. We know that the traditional survey questions produce a familiar narrative, and we know that contradictory attitudes are also
present but are rarely measured by survey research. One idea would be to change the
nature of the questions asked in research studies such as the Scottish Crime Survey.
Instead of repeating the questions about knowledge and attitudes to sentencing, a new
set of questions about rational penal policy could be substituted, where respondents are
presented with small amounts of information about relative costs and effectiveness of
disposals and asked to make sentencing disposals for a small number of cases in the
light of this information. This would place a different sort of information about public
opinion in the public domain and perhaps allow a more rational debate on penal policy
to take place.
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BEYOND POPULIST PUNITIVENESS IN SCOTLAND?
There seems little value in trying to reach a conclusive statement of the views of the
Scottish public on crime and punishment. The data from this study do not support
such a statement. There has been a tendency to assume that the public appetite for more
severe punishment is a given and that politicians therefore have no choice but to adopt
tough policies (or at least tough penal rhetoric) which will appeal to the electorate.
The results of this study suggest that while the Scottish public appear to support tough
approaches to punishment, at the same time, and in the same breath, they also support
alternative approaches. Toughness, which in practice means longer prison sentences in
prisons with harsher conditions, is seen as appropriate but only for serious and dangerous offenders. There is also widespread support for community-based sanctions which
offer the opportunity for less serious offenders to reduce their offending behaviour.
These options are seen as being more effective and in particular more cost-effective than
imprisonment.
Doob has suggested that there is an opportunity in Canada to move away from a
simplistic debate about whether the criminal justice system is too tough or too lenient
to a discussion about how to construct a criminal justice system that is intelligent and
fair. He argues that the evidence from his research suggests that there is public support
for an approach that is based on rationality and fairness. This study in Scotland supports
Doobs conclusions. It was particularly evident from the civic participation exercise that
the public have a keen sense of justice and a desire to secure just outcomes in individual
cases. This approach is shared by the judiciary in Scotland (Hutton, 1999). This suggests
that, at least in Scotland, politicians who wish to introduce a more rational, costeffective penal policy are likely to find support for this among the electorate. The public
understand that short prison sentences are not the most effective way of reducing crime
and that properly funded community-based programmes offer the Scottish public a
more cost-effective way of building a safer community.
There are some signs that political, social and cultural conditions in contemporary
Scotland may be conducive to the development of a more rational penal policy although
there are also signs that point in an opposite direction (McNeill, 2004). There is only
space here to sketch some of the most significant conditions.
The work of the two Justice committees in Parliament suggests that there is broad
cross-party agreement on criminal justice that would support the development of more
rational policy. The Scottish Prison Service has stated that a reduced short-term prison
population would allow them to work more effectively with long-term prisoners
(Scottish Prison Service, 2002). A report produced by the Criminal Justice Forum of
the Scottish Executive recommends the increased use of community sanctions as an
alternative to short custodial sentences (Criminal Justice Forum, 2001). A consortium
of non-government criminal justice organizations in Scotland has produced ambitious
proposals for a rational reductionist penal policy that has received widespread attention
(SCCCJ, 2001). There is thus widespread support from a range of stakeholders for a
more rational approach to penal policy, and the results of the research study reported
here, for the first time provide evidence of support for this approach among the Scottish
public. Although global trends point to ever-increasing prison populations and increasing populism in criminal justice politics, there are local conditions in Scotland, and no
doubt elsewhere, which suggest that an alternative future is at least a possibility.
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Notes
1 It is important, especially in the UK context, not to overestimate the impact on

criminal justice of punitive policies, many of which are intended to have more impact
as rhetorical devices to reassure the electorate that government is tough on crime than
actually to incarcerate more offenders.
2 The participants were recruited from civic organizations around Glasgow and thus
do not represent the population, but rather the views of civic-minded, older members
of the community.
3 At the time of writing (13 September 2004) the New York Post carries a front-page
article which argues that as crime continues to fall in the USA and as the response
to terrorism dominates the presidential campaign, crime may no longer be such a
focus for these diffuse anxieties. Recent publications from the VERA institute suggest
that a number of states are beginning to seek to reduce their rates of incarceration,
not only because of fiscal pressures but because of a shift in thinking about criminal
justice policy (Woll and Stemen, 2004).
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01 hutton (ds)

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PUNISHMENT AND SOCIETY 7(3)

METHODOLOGY ADOPTED FOR THE SCOTTISH STUDY

HUTTON Beyond populist punitiveness?

methodology to make this approach a more cost-effective addition to the means of

METHODOLOGY: MEASUREMENT OR CONSTRUCTION?

INDIVIDUALIST AND STRUCTURALIST ACCOUNTS

PUNISHMENT AND SOCIETY 7(3)

HUTTON Beyond populist punitiveness?

KNOWLEDGE AND VIEWS ABOUT CRIME AND THE CRIMINAL

THE SENTENCING DECISION

PUNISHMENT AND SOCIETY 7(3)

HUTTON Beyond populist punitiveness?

ANALYSIS OF ONE CASE PRESENTED DURING THE CIVIC

PUNISHMENT AND SOCIETY 7(3)

HUTTON Beyond populist punitiveness?

REPRESENTING MORAL COMPLEXITY

These results demonstrate the difficulty of producing a clear and unambiguous

PUNISHMENT AND SOCIETY 7(3)

HUTTON Beyond populist punitiveness?

CAN PUBLIC CONFIDENCE BE INCREASED BY THE PROVISION OF

PUNISHMENT AND SOCIETY 7(3)

HUTTON Beyond populist punitiveness?

BEYOND POPULIST PUNITIVENESS IN SCOTLAND?

PUNISHMENT AND SOCIETY 7(3)

1 It is important, especially in the UK context, not to overestimate the impact on

HUTTON Beyond populist punitiveness?

PUNISHMENT AND SOCIETY 7(3)

Tonry and K. Hatlestad (eds) Sentencing reform in overcrowded times: A comparative

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