Peter Ramsay On Democratic Theory of Punishment As Antidote To Mass Incarceration
Addressing the ‘invisibility of prisons’, Ian Loader had called the practice of ‘keeping the public at bay’ in decisions pertaining to criminal justice as an impediment to thinking not just about mass incarceration but beyond it. He called for exploring as to how the democratic ideals can be theorised in reshaping the criminal justice and used as a ‘resource for better penal politics.’
We can see this exploration in Peter Ramsay’s attempt at shaping a democratic theory of punishment in ‘A Democratic Theory of Punishment.’
In order to support a claim for democratising penal politics, Ramsay first attempts to highlight how the liberal penal theories have failed to address the issue of rising mass incareceration. He argues that the liberal theories see persons as moral agents who are ends in themselves, who should receive only as much punishment which is proportionate to the seriousness of the crime.
While liberal theories commit themselves to proportionate punishment, where seriousness is understood as some combination of the harm done to victims and the culpability of the offender, they fail in developing a restraining mechanism on the severity of punishment. While categorising proportionality as ‘ordinary’ and ‘cardinal’, Ramsay states that:
‘Ordinal proportionality means that offenses of similar seriousness receive punishments of similar severity and that the punishments increase in severity as offense seriousness increases. Cardinal proportionality concerns the severity of the entire scale of ordinally proportionate punishments. The problem for penal theorists is that while it is possible to devise ordinally proportionate sentencing regimes, there is no obvious answer to the question of how severe the punishments in that regime should be overall.’
In order to place democratising of penal politics as an antidote to mass incarceration, Ramsay relies upon the prevailing trend of ‘de-democratisation’ in Anglo-American politics. He argues that the rising rate of mass incarceration in these countries is related to the fall in public participation in democracy. Modern political rhetoric, Ramsay argues, reduces citizens to mere consumers of goods, services, and even politics. This consumerist-electorate is then redefined as ‘victims’ to control the discourse on appropriate conditions for government intervention, and justify mass incaercartion as a ‘war on crime’. He says:
‘When citizens are defined by their vulnerability to crime, their perception of their security becomes a vital interest because their freedom will be limited in so far as they are not secure from potential victimization. As a result of this, the criminal law of consumer- citizenship increasingly protects a “right to security,” and it does so by constructing dangerousness as both a moral and penal wrong. From this standpoint, simply being dangerous is a violation of citizens’ right to security, and once dangerousness itself is considered a wrong deserving of punishment, then incapacitation becomes a proportionate response to the wrong of dangerousness’
As per Ramsay, it is this de-democratisation of the citizenry which leads to not just mass incarceration of offenders but also to the rampant use of preventive detention. Therefore, strengthening democratic participation in penal politics becomes a plausible answer to the issue of mass incarceration.
Ramsay calls his democratic theory of punishment — Democratic Retributive Abolitionism. In this theory, the punishment is not seen as giving the offender what she deserves, but what the state has a right to do to its citizens. This theory sees democracy not just as a fixed institutional model, but as a dynamic process where actual living individuals are engaged in the process of self government.
This theory is based on the idea of political equality which includes not just the formal recognistion of universal right to equality, but also ensuring that the citizens enjoy sufficient political influence to engage in meaningful self-government. Ramsay says:
‘Substantial self-rule can only be achieved if the formal rights are upheld. Political equality can, therefore, be more or less realized according to the extent that the formal rights of political equality are re- spected in practice by executive agents and other citizens, and to the extent that the citizenry exercises these rights to exert more or less influence over the making of law and the execution of policy.’
This system of political equality sees criminal activity as an intentional act of denying the existence of rights, which subsequently amounts to the offender implicity relinquishing her own entitlement to that right. Therefore, punishment is justified as the intentional act of the offender is seen as an implicit affirmation to the act of depriving her of her own right to political equality. Crime is not seen as a moral wrong against the victim, but as an act of not recognising the right to political equality, hence, the quantum of punishment would depend on the potency of the challenge such act poses to the reality of democratic rights. As per Ramsay, this would lead to what he calls ‘democratic decremantalism’, he says:
‘the more that the state is characterized by the political equality of its citizens, which is to say, the more democratic is the state, the less the challenge that any particular offense will represent to the rights of citizenship. As a consequence, the better realized are democratic rights and the stronger the democracy, the lower will be the cardinal scale of penal proportionality, and the more room there will be for leniency, since not every criminal rights denial will require a penal response for the regime of democratic rights to enjoy effectively unchallenged supremacy’
He further explains as to how democratic theory will lead to radical decrement in cardinal scale of proportional punishments:
‘As rights are strengthened in every other aspect of the relation of state and citizens, the specifically criminal aspect of criminal acts diminishes in relative signifi- cance, and so too does the need for severe punishments such as imprison- ment. In so far as criminal denials of rights persist in a democratic regime that has become so strong that those offenses no longer present a signifi- cant challenge to the reality of democratic civil rights, then something like restorative methods involving interested parties can be substituted for incarceration.’
This decrementalism, Ramsay argues, shall work towards reaching the idea of abolitionism, where the significance of serious crimes is reduced to such an extent that they won’t require incarceration at all.
Ramsay’s theory also addresses the concerns usually raised by democratic participation in criminal justice: treatment of non-citizens, and lack of social justice. The theory of democratic retributionism is not just about deciding punishment, it is foremost about realising the actual political equality by eliminating criminogenic social and economic conditions:
‘Citizens who respect themselves and each other on the grounds of their political equality, who respect each other’s status as corulers, will seek to use their political influence over the state to eliminate the relatively poor social conditions that contribute to criminal wrongdoing and make it less likely that individuals will contribute to collective self- government.’
Complement this reading with Nicola Lacey’s The Prisoners’ Dilemma: Political Economy and Punishment in Contemporary Democracies, and Ian Loader’s ‘For Penal Moderation: Notes towards a Public Philosophy of Punishment.’
