Abstract
For over two decades, “penal populism” has been trying to explain the major developments in penal policy around the world. As a theoretical model, it is often seen as synonymous with an unrestrained growth of punishment-oriented thinking. This study discusses a critical issue involving the complex link between contemporary punishment and politics. Building upon Michael Freeden’s “morphological analysis” of ideologies, we examine the internal structure of populism. An empirical test of the “penal populism” thesis will be conducted in post-redemocratization Brazil (1980s). Criminal legislation passed during three populist governments will be analyzed to determine whether there was a correspondent expansion of punitiveness. We hypothesize that there is no necessary connection between populism and more punitive criminal policies. Thus, we propose a new understanding of “penal populism” as an authentic penal ideology or an ideology of crime control.
Plain language summary
The purpose of our study was to run an empirical test of the “penal populism” thesis in the context of post-redemocratization Brazil. The method to achieve such purpose was evaluation of criminal legislation passed during populist governments in Brazil. The main implication of our study was the need to re-think “penal populism” as a penal ideology or an ideology of crime control.
Introduction
“Penal populism” is a theoretical model that emerged in the last two decades of the 20th century in English-spea-king countries with the aim of explaining the major developments in penal policies that took place in the United States of America and, to a lesser extent, in England (Bottoms, 1995; Garland, 2008; Pratt, 2007a; J. Roberts et al., 2003). It has gained widespread acceptance, becoming a new orthodoxy in criminological scholarship. As an analytical model, penal populism has been useful to describe rise of excessive “punitiveness” or what has already been referred to as “the expansion of Criminal Law” (Silva Sánchez, 2001) in modern societies.
Despite the attention penal populism has received from numerous scholars, including in Brazil (Gomes & Almeida, 2013; Gomes & Gazoto, 2020; Mendes, 2019; Pereira, 2020), understanding the relationship between the expansion of punitivity, characterized by the harshening of criminal laws, and the politics in a particular society can be an intriguing task. Furthermore, as the purpose of penal populism is to serve as an analytical model, we believe it should be empirically tested.
Particularly, taking into consideration that ideologies shape the way we think about crime and punishment, they certainly influence the formation of criminal and criminal procedure laws (Gallo, 2020; Loader, 2008; Loader & Sparks, 2016). This connection between politics in general and penal policies is often overlooked in criminological scholarship. Nevertheless, some criminologists suggest that penal policies should be evaluated through a “political assessment” (Loader & Sparks, 2016), which would inquire into the impact of the key concepts underlying a particular ideology on criminal laws. For instance, several studies aim at identifying the populist aspect of penal populism (Garland, 2021; Matthews, 2005; Pratt, 2007a; Zimring, 1996). We agree with Loader and Sparks (2016) that it is crucial to consider penal policy in its ideological context, without separating the criminal issue from ideologies. Our main goal in this study is to conduct an empirical test of the “penal populism” thesis within the recent political experience in Brazil, as explained below.
Building upon Michael Freeden’s idea of “thick” and “thin” ideologies, we will study populism as a “weak,”“secondary” or “thin” ideology (Freeden, 2003, p. 97; Mudde & Kaltwasser, 2013b; Stanley, 2008). This perspective will enable us to differentiate populism from other competing concepts, such as a simple power strategy (Weyland, 2001, 2017) or discourse/rhetoric (Laclau, 2005), which are not relevant to our main objective of empirically testing the relationship between populist politics and criminal policy.
In the context of Brazilian politics, we will analyze the penal legislation of three populist Presidents from the post-redemocratization era (1980s): Collor, Lula, and Bolsonaro. Indicators of punitiveness in populist governments’ penal policies will allow us to discuss important issues for a better understanding of penal populism. The hypothesis being tested is that during periods of strong populist national governments, there was not necessarily a tightening of criminal laws. Through this investigation, the final part of the study will discuss the academic model referred to as “penal populism,” which has been developed in the Anglo-Saxon world (Bottoms, 1995; Dzur, 2010; Garland, 2008; Pratt, 2007a; J. Roberts et al., 2003) and widely adopted in Brazil (Gomes & Almeida, 2013; Gomes & Gazoto, 2020; Pereira, 2020). Penal populism has not shown to be a useful analytical tool for analyzing the Brazilian political landscape (Dal Santo, 2020). On the other hand, it could be argued to have become a distinct ideology for crime control, that is, a penal ideology, capable of coexisting with other political ideologies, such as liberalism, socialism, conservatism, or populism.
To be sure, the link between contemporary punishment and politics is quite complex. Criminal legislation is usually the result of a complex process of political compromise, involving multiple branches of government, for example, executive and legislative. “Punitiveness” in any given society is not only the result of criminal laws enacted by the government; not only legislative but also popular preferences for stricter criminal laws from times to times are highly influenced by mass media in modern societies. The rise or decline of crime levels are rightly expected to impact criminal policies as well. Therefore, multiple factors should be considered to measure the link between populist politics and criminal policy. The scope of our study, however, is far more limited. Our goal is to contribute to “penal populism” scholarship through legislative evaluation in an intriguing geographical context in the Global-South, as Brazil has recently endured the administration of a far-right, populist government (Jair Bolsonaro). In such a context, the enactment of legislation should be regarded as a crucial element, albeit not the only one, of a government’s criminal policies. Nevertheless, future research should attempt to use a more comprehensive approach.
Defining Populism and Understanding “Penal Populism”: A Literature Review
Populism is an intriguing and complex phenomenon. From the Russian Narodniks agrarian movements of the 1860s and 1870s and the People’s Party in the U.S. at the end of the 19th century, to socio-economic populist governments in Latin America in the 1950s and 1960s (such as Juan Domingo Perón in Argentina and Getúlio Vargas in Brazil), to the recent xenophobic trend in Western Europe represented by far-right parties like the French Rassemblement National and the Austrian Freiheitliche Partei Österreichs (FPÖ), the heterogeneity of populist experiences is vast. Thus, finding a definition that captures the full range of different forms of populism can be a difficult endeavor. Moreover, the term “populism” is overly vague, encompassing significantly different political leaders and parties. It is one of the most disputed concepts in the social sciences, having been defined as political discourse, ideology, leadership, movement, phenomenon, strategy, style, and syndrome (Mudde, 2017).
In accordance with Amadeo and Paula (2021), populism can be conceptualized from the following contemporary perspectives: (i) populism as a political strategy for gaining power, as argued by Kurt Weyland; (ii) populism as discourse or discursive logic, as proposed by Ernesto Laclau; and (iii) populism as ideology, as supported by Cas Mudde.
Kurt Weyland’s political-strategic approach views populism, first and foremost, as a political strategy adopted by a specific type of leadership referred to as personalist. This strategy is built and maintained through direct support from the public without intermediaries. According to Weyland (2001, 2017), the key characteristic of populism is the concept of personalist and opportunistic leadership. A populist politician avoids committing to a single discourse, worldview, or ideology, and does not want to tie his political fate to strong ideological views. Such approach emphasizes the practical aspect of attaining and exercising power. Although it is clear that populist politicians (and political parties) adopt a power strategy that is instrumentalized through a particular type of popular mobilization, in which they establish a direct and close relationship with their followers (Mudde, 2017), the main criticism of Weyland’s theory is that it was originally formulated to explain populism in Latin America, and therefore, may not be applicable to different forms of populism in other contexts (Amadeo & Paula, 2021; Rueda, 2021).
Laclau’s (2005) discursive approach views populism as a political elite’s discursive strategy to give meaning to the expressions “people” and “elite” in order to maximize their political support. For Laclau, the core of the concept lies in the formation of the people as a political actor. Populist politicians use an anti-status quo discourse that narrows the political space through the antagonistic division of society into the people and the elite. De la Torre (2017) holds a similar view and emphasizes the Manichaean discourse of populism. The approach put forth by the Argentine philosopher prioritizes the form of populism over its content. The crucial aspect is the analysis of the discursive patterns in populist experiences, not necessarily the ideological elements of its politics (Amadeo & Paula, 2021). The greatest advantage of the discursive perspective is its ability to explain the connection between various populisms, despite the different ideologies each of them may have. Paradoxically, this is also a criticism of the Laclauian conception: it is said to be merely formal and ignore any minimum ideological content in populist phenomena (Amadeo & Paula, 2021).
Weyland’s and Laclau’s approaches and concepts share a common resistance to view populism as an ideology. This means that they do not see the defense of any specific idea or worldview in populist political experiences. For the purposes of this study, which is to investigate whether the criminological thesis of “penal populism” can be applied to recent populist governments in Brazil in terms of the tightening of criminal and criminal procedural laws, we find it more appropriate to use a third approach to populism, which is primarily defended by Dutch political scientist Cas Mudde. Mudde’s “ideational approach” recognizes the truly ideological nature of populism and derives its name from the idea that it conceptualizes populism from certain ideas.
Indeed, for Mudde (2004, p. 543), populism is an “ideology that considers society to be ultimately separated into two homogeneous and antagonistic groups: ‘the pure people’ versus ‘the corrupt elite’, and which argues that politics should be an expression of the volonté générale (general will) of the people.” The three core elements of populism, therefore, are the people, the elite, and the general will. The moral opposition between the “people” and the “elite” is a defining characteristic of all populist movements (Mansbridge & Macedo, 2019). In other words, populism can be considered a form of “moral politics” (Mudde & Kaltwasser, 2012a, p. 8), because the division between the people and the elite is essentially moral (the “pure people” vs. the “corrupt elite”), rather than sociocultural (based on ethnicity or religion) or socio-economic (based on class). Additionally, both the “people” and “elite” are “empty signifiers” (Laclau, 2005, p. 69), as it is the populists who determine the exact meaning of these terms.
Following the work of Freeden (2003, 2013), Mudde and Kaltwasser consider populism to be a “thin” ideology, morphologically composed of a few central concepts that are not sufficient to provide meanings and explanations for all political world issues (Mudde, 2017; Mudde & Kaltwasser, 2017). As a result, populism is often found in the real world attached to another ideology, main or secondary, such as nationalism, neoliberalism, socialism, among others.
The flexibility of the concept of populism does not indicate weakness, but rather is the reason for its current relevance in contemporary politics (Amadeo & Paula, 2021). The main advantage of the ideational approach is its ability to explain the heterogeneity of populist experiences in the real world (Mudde & Kaltwasser, 2017). Therefore, we argue that a “minimal definition of populism” (Mudde & Kaltwasser, 2012a, p. 8) is the best way to define populism in a manner that encompasses the maximum number of historical experiences. This “ideological flexibility” (Mudde & Kaltwasser, 2012a, p. 9) of populism is what characterizes its chameleonic nature (Taggart, 2000).
“Penal populism,” on the other hand, consists in a different phenomenon. To be true, since the 1990s, many criminologists have described a trend of punitivism in many Western democratic societies. In the Anglo-Saxon world, Anthony Bottoms referred to “populist punitiveness” as a trend in penal policy in England during that time. Politicians were using the public’s punitiveness for electoral purposes (Bottoms, 1995). Criminologist David Garland used the term “punitive populism” to describe a few changes in the modern criminal justice system, particularly in the US and England, that have led to the current “culture of control” over crime (Garland, 2008). J. Roberts et al. (2003) introduced the term “penal populism,” which refers to the implementation of criminal policies for the purpose of gaining political support rather than reducing crime or promoting justice, particularly in anglophone countries (United States, England, Canada, Australia, and New Zealand). Pratt (2007a) expanded on the concept of penal populism, defining it not only as an electoral tactic to win votes through stricter criminal laws, but also as a new configuration of the penal power structure, representing a “new axis of penal power” (Pratt, 2007a, p. 25).
In short, the key characteristics of this new form of exercising criminal justice are: a greater “politicization” of the criminal justice system, becoming a central component in electoral contests; a reduction of the role of specialists and professionals in the criminal justice system in shaping criminal policies, leading to a decline in the “rehabilitative ideal” (Garland, 2008, p. 50); an increase in popular participation in determining penal policies; the use of the image of the victim and a return to retributive (punitive) justifications for punishment; a harsher response to crime, including an increase in the use of imprisonment; and the existence of a common enemy (Dal Santo, 2020). These aspects are often controversial in academic literature, particularly the notion of popular punitivism or an essentially punitive public opinion (Hough, 1996; Johnston, 2000; J. Roberts et al., 2003), the exploitation of popular feelings of fear and insecurity by the political class (Chevigny, 2003), and discussions on the decline of experts (Dal Santo, 2020; Garland, 2008, 2021; Pratt, 2007a; Zimring, 1996).
It is crucial to comprehend that penal populism refers to a theoretical model developed by Anglo-Saxon criminology in the late 20th century. This model was created to explain the social changes that some democratic countries underwent, resulting in a shift toward greater punishment in these societies (Garland, 2008, p. 315). There is a generally critical view of penal populism, with a clear tone of regret about the growing trend toward punitiveness. This negative assessment of penal populism is partly due to its explanatory model highlighting the negative impact of a populist approach on penal policy formulation. The underlying logic can be summarized as follows: just as populism is seen as a pathology of democracy, penal populism represents a degradation of the rationality of political-criminal systems, caused by the appeal to the authority of the “people,” claiming to represent their (supposed) penal demands. This often leads to “hyperpunitive” outcomes (da Silva Gadino, 2021). This complex issue will be revisited in the conclusion of this article.
Methods
Latin America has been described as the “land of populism” (De la Torre, 2017, p. 195). In general, populism in the continent has always been characterized by political instability, weak institutions, the prominence of charismatic leaders, and extremely high levels of social inequality (Amadeo & Paula, 2021). According to De la Torre (2017), classic populism in the 1930s and 1940s was marked by nationalist and redistributive social policies in countries such as Argentina, Brazil and Mexico. During the 1990s, “neoliberal populists” like Alberto Fujimori (Peru), Fernando Collor de Mello (Brazil), Carlos Menem (Argentina), and Abdalá Bucaram (Ecuador) abandoned the State-centered policies of their predecessors, reduced the size of the public sector, and opened their nations’ economies to international capital. This form of populism has been referred to by some scholars as the “more liberal variant of populism” (K. M. Roberts, 1995, p. 83). More recently, Latin America has experienced “radical populism,” with countries such as Venezuela (Hugo Chávez), Bolivia (Evo Morales), and Ecuador (Rafael Correa) shifting to the left. Using strong anti-neoliberal and anti-US rhetoric, these populists aim at establishing new democratic constitutional orders (Amadeo & Paula, 2021; Weyland, 2017) through an “emancipatory promise” (Panizza & Miorelli, 2009, p. 40).
Particularly in Brazil, populism is a fundamental part of local political tradition. Historians such as Fausto (2019), and Schwarcz and Starling (2018) identify Getúlio Vargas, who served as President of Brazil from 1930 to 1945, and Jânio Quadros, who held positions as Mayor, Governor of São Paulo, and briefly as President of the Republic in 1961, as clear examples of populist political leaders. Getulism, also known as Varguism, represents the epitome of the first “wave” of populism in Latin America, referred to as “classical populism” (Mudde & Rovira Kaltwasser, 2013a), which is now a historical reminiscence.
In this study, we are interested in the period after the country’s re-democratization, which ended with the mandate of the last military president, João Batista Figueiredo, in 1985. However, our focus is particularly on the landmark of the new constitution of 1988, which marked the completion of the democratic transition (Fausto, 2019). Soon after, a second stage of neoliberal populism began in Brazil with the rise to power of Fernando Collor de Mello (1990–1992). Our time frame is not arbitrary but is justified by the research problem at hand, which involves examining the relationship between the academic concept of “penal populism,” first proposed in the 1990s in Anglo-Saxon countries, and populist political experiences in Brazil. We have chosen to investigate governments widely recognized as populist, starting in the 1990s, a time when the term penal populism first emerged (Bottoms, 1995).
Based on innovative empirical study conducted by Ricci et al. (2021), we identified the governments of Fernando Collor de Mello, Luís Inácio Lula da Silva, and Jair Bolsonaro as populists. The authors analyzed 5,818 official statements made by Brazilian presidents between 1985 and 2019. From this data set, they were able to identify in the speeches phrases that have the potential to express populist ideas (antagonism between the people and the elite). The findings indicate that the populist presidents in Brazil’s recent history are Collor, Lula, and Bolsonaro, who together account for 75.8% of all populist speeches in recent Brazilian history. Bolsonaro is considered the most populist of the three. The study conducted by Ricci, Izumi, and Moreira adopted the “ideational” approach to populism - the same adopted by us - and used discourse/textual analysis as its methodology. The ability to “measure” populism objectively is considered an important methodological advantage of the approach adopted by authors such as Cas Mudde (Hawkins & Kaltwasser, 2019).
The same text analysis technique was used by Hawkins et al. (2019) in their study, which analyzed speeches made by leaders of 40 countries between the years 2000 and 2018. However, the results were somewhat different. In Brazil, the researchers evaluated the speeches of Presidents Fernando Henrique Cardoso, Luís Inácio Lula da Silva, Dilma Rousseff, Michel Temer, and Jair Bolsonaro, and only the latter was considered populist.
We believe, however, that President Lula can be characterized as a populist. His political actions, particularly regarding fiscal and economic responsibility and the defense of democratic institutions, are the primary reason for controversy. On the other hand, the use of welfare public policies for the purpose of gaining widespread popular support is considered a hallmark of populism (Marques & Mendes, 2006). Additionally, according to Ricci et al. (2021), Lula’s public speeches have consistently contrasted the rich (the “elite”) and the poor. In fact, the focus on acknowledging that a large portion of the population lacks even minimally decent living conditions is indicative of a Latin American style of inclusive populism (Mudde & Rovira Kaltwasser, 2013a).
Our next task is to evaluate the criminal and criminal procedural legislation approved during each of the populist governments in the recent history of Brazil, following the re-democratization of the 1980s. Limitations of our approach have been explicitly acknowledged in the introduction to this article. A crucial caveat to be considered is the complexity of the political process leading to the enactment of legislation. We do not claim that criminal policies materialized in the form of legislative acts are the result of the style of politics of any specific politicians holding the presidential office, whether populists or not. In the Brazilian context, executive-legislative relations have been the object of much scholarly interest since re-democratization. Brazilian politics has been generally described as “coalitional presidentialism,” characterized by enhanced presidential power and centralized legislative procedure (Abranches, 2021; Power, 2010). Constructing legislative coalitions is key to presidential rule (Chaisty et al., 2014). Despite the dynamics of power relations in a presidential democracy, we believe that legislative evaluation can be a useful indicator of a government’s preferences in terms of criminal policy.
For the purposes of our study, the assessment of the severity level of each statute was based on the following elements as indicators of increased punitiveness: (a) criminalization of new behaviors, (b) longer prison sentences, (c) elimination of legal benefits such as progressive prison regimes (e.g., parole or other forms of early release from prison), and (d) extension of statutes of limitations for the State to prosecute offenders, among others. Criminal laws analyzed will be categorized as “punitive” or “non punitive” (“neutral”). A criminal law is to be considered “punitive” whenever at least one of the mentioned factors is present. “Punitive” category will not allow for any gradation. Therefore, even if a combination of factors is present, the corresponding category will still be “punitive.” On the other hand, a criminal law is to be classified as “non punitive” whenever all factors are absent.
Other methods have been employed in scholarship. For instance, Gomes and Gazoto (2020) employed distinct methodologies to evaluate the severity of 161 criminal laws approved between 1940 and 2019, excluding criminal procedural laws. They classified the laws as “harmful,”“beneficial,”“mixed” or “indifferent.”Mendes (2019), on the other hand, examined 191 proposed criminal laws that were being discussed in the National Congress and that aimed at increasing the penalties for existing crimes. It is important to note that the differing methodologies used do not compromise the validity of either study, but rather, the results should be carefully read and interpreted.
In our study, the source for searching legislation was the electronic website of Brazil’s government (Presidência da República), 1 which contains all the laws, both criminal and non-criminal, that have been approved in Brazil since 1891 (during the Republican period). We decided to take into consideration only the so-called “ordinary laws” (leis ordinárias) and exclude other forms of legislation such as delegated laws, interim measures, decrees, and decree-laws. This is due to the Brazilian legal tradition of legality, predominantly applicable to criminal laws.
After evaluating the severity and punitiveness of the criminal legislation passed during each populist historical period, it will be necessary to compare it with the penal policies of another, non-populist period in recent Brazilian history. The government of Fernando Henrique Cardoso (1995–2002) was selected as a point of comparison. Cardoso was an intellectual politician who did not gain power by inciting a division between the people and elites, and his administration can be characterized as center-left. It was marked by unpopular measures within the country’s political and cultural context, such as the privatization of state-owned companies.
Two additional key methodological considerations should be now addressed. First, we acknowledge that many criminal justice policies are merely symbolic in nature. That is, despite being labeled as “punitivist” in theory, they do not produce practical results (Gómez & Proaño, 2021). Thus, a law may not necessarily be “punitivist” just because it appears so on the surface. However, assessing the actual impact of crime control measures is beyond the scope of our study.
Second, the assessment of the level of punitiveness of penal policies is a complex endeavor. This complexity is not just due to the increase in penal severity, as indicated by the creation of new criminal offenses. It is well known that criminal law is constantly expanding, and the criminalization of new behaviors does not necessarily mean excessive punitiveness. In some cases, it simply reflects the emergence of new interests in increasingly complex societies (Silva Sánchez, 2001). The criminalization of harmful acts to the environment, for example, is a result of the need to protect natural resources once believed to be abundant and inexhaustible. The criminalization of domestic violence against women and feminicide, similarly, will hardly be seen as excessive, but rather as a product of profound changes in society, in this case reflecting the positive influence of feminist movements. Crimes motivated by discrimination of any kind (racism, gender discrimination, or sexual orientation, etc.) are also often created after a certain international consensus, resulting from the recognition of the strength of pluralism found in most democratic countries.
Results
During the term of Fernando Collor de Mello as President of Brazil, which lasted less than 3 years until he faced an impeachment trial, only 7 (seven) criminal laws were passed. In Table 1, the laws considered as “punitive” are highlighted in bold:
Fernando collor de Mello (1990–1992).
Quite surprisingly, all the laws enacted during this period were characterized as “punitive” based on the criteria described in the Methods section (Table 2). However, the low number of penal legislative acts—only 7 (seven) laws—can be interpreted as an indication of the low priority given to penal policies by the Collor administration.
Results.
In civil law jurisdictions, a statute of limitations is known as a prescriptive period.
On the other hand, during the two terms of Luís Inácio Lula da Silva (2003–2010), 42 criminal and criminal procedure laws were approved. Out of these, 19 (nineteen) can be considered “punitive,” which is about 45.2%. Table 3 illustrates the criminal legislative production during the Lula administration, with the “punitive” laws highlighted in bold. Results are shown in Table 4:
Luis Inácio Lula da Silva (2003–2010).
Results.
In civil law jurisdictions, a statute of limitations is known as a prescriptive period.
Passed during Lula’s first term in office, Law No. 11343/2006 should be highlighted as the opposite of “penal populism.” It changed the direction of Brazilian penal policy in addressing the drug issue. Instead of punishing drug users with imprisonment, legislation now allows judges to impose non-custodial sentences, such as attendance to educational programs or courses.
In the last selected government, under Jair Messias Bolsonaro (2019–2022), 18 criminal laws were passed, with 10 of them classified as “punitive,” or approximately 55.5%. Table 5 presents the criminal legislation enacted during that period, with laws that toughened penal policies highlighted in bold. Results can be found in Table 6:
Jair Messias Bolsonaro (2019–2022).
Results.
In civil law jurisdictions, a statute of limitations is known as a prescriptive period.
It is interesting to observe that during this period, Law No. 13964/2019 took effect, introducing the concept of non-prosecution agreements in the Criminal Procedure Code. This provides prosecutors and defense attorneys with an important tool to find a consensual solution to the case at hand, breaking away from the retributive justice paradigm.
On the other hand, the Bolsonaro government has approved two statutes that are characterized as populist and punitive. The first one created the National Registry of Sex Offenders (Law No. 14069/2020), like the well-known Megan’s Laws in the US, which are often cited as an example of penal populism. The second one harshened prison sentences for animal abuse (Law No. 14064/2020) after extensive media coverage of two incidents of cruel violence against dogs, one of which led to the law’s popular name, the “Sansão Law.”
Except for the Collor government, which recorded low activity in penal policies, the mandates of the populist leaders Lula and Bolsonaro approved roughly half of their criminal laws, which have punitive characteristics. These laws statutes criminalize new behaviors or increase the penalties for existing offenses. This outcome alone does not necessarily mean that populist political experiences in recent Brazilian history have resulted in a hardening of penal policies.
Discussion
What lessons can be drawn from a legal analysis of penal policies in post-1988 populist governments in Brazil? What is the connection between the prevailing political model in a society and the approach to the criminal issue (crime and punishment)? How can the study of ideologies contribute to comprehending criminal policies? Finally, the main question: can the concept of “penal populism” be analyzed from an ideological perspective?
First, there is not necessarily a relationship between populist politics and criminal punitiveness. This connection may or may not be established. In theoretical terms, the existence of such a relationship is often argued (Barker, 2006; Garland, 2021; Gomes & Almeida, 2013; Matthews, 2005; Pratt & Miao, 2019). However, in the real world, while there are clear examples of excessive punishment resulting from popular legislative initiatives, such as the three-strikes laws in the American state of California (J. Roberts et al., 2003; Shammas, 2016; Zimring, 1996), or the reform of the Heinous Crimes Statute in Brazil, in 1994, by Law No. 8930, following the murder of popular actress Daniella Perez, further empirical tests comparing the results of penal policies adopted by populist versus non-populist leaders are still necessary.
It is true that the political realities of various countries outside the Anglo-Saxon world have already been studied by criminologists, with different perspectives. One example is the adoption of a repressive penal policy toward immigrants in Norway, following the entry of the Progressive Party (Fremskrittspartiet or FrP), considered as populist, into the coalition government led by the right-wing Conservative Party between 2013 and 2020 (Todd-Kvam, 2019). Another example is the impact of the transition from dictatorship to democracy on punitivism in Greece since 1974 (Cheliotis & Xenakis, 2016). Lastly, the advancement of punitivism in Spain after the end of Franco’s dictatorship in 1977, characterized by an expanding criminal law, was exacerbated by the Euro crisis, also known as the Great Depression (Brandariz-García, 2018). In general, these studies have found elements that suggest a certain impact of populism on criminal policies. The difference between these findings and those from our study on post-democratic Brazilian populist policy highlights the need for further research into the intersection between politics and criminology.
Second, “penal populism” is not uniformly present worldwide, meaning that as a theoretical model, its explanatory power is applicable to certain countries but not all, contingent upon the presence of historical-cultural factors. The concept of penal populism was originally developed in a context of neoliberal dominance in the United States and England during the late 20th century. There appears to be a strong relationship between punitive populism and neoliberal politics (Cavadino & Dignan, 2006a, 2006b; Costamilan et al., 2021; Gomes & Almeida, 2013; Pratt & Miao, 2019). As a result, it can be argued that in societies less influenced by neoliberalism and with stronger welfare measures, such as the Nordic countries, criminal policies are less punitive (Cavadino & Dignan, 2006a, 2006b; Lappi-Seppälä, 2011). This has led to the idea of a “penal exceptionalism” typical of Scandinavia, which is in contrast to the excessive punitiveness seen in other Western countries (Pratt, 2007b, 2007c).
In this sense, some studies suggest the presence of certain protective factors, or barriers against penal populism, found in some countries but not in others, and not always with the same degree of strength (Dal Santo, 2020; Larrauri, 2006; Pratt, 2007a). In nations where some of these barriers are in place, it is unlikely that punitive penal policies will be in effect. In the case of Brazil, our study did not aim at examining the cultural and institutional conditions related to the emergence and development of penal populism, as proposed by Dal Santo (2020). There is certainly ample room for future research in fields such as sociology and political science.
Anyway, the lessons drawn from our simple empirical investigation of the Brazilian case seem to suggest that penal populism, understood as a theoretical model, has only limited explanatory power. It cannot adequately explain the development of the penal issue in all countries. Therefore, we propose that penal populism should be understood and interpreted as a true penal ideology, rather than just a theoretical model. This involves not just studying the relationship between political ideologies, such as populism, and the penal issue, which has proven to be quite controversial.
Following Freeden’s (2003, 2013) morphological analysis, we can identify the following central concepts in a crime control ideology based on “penal populism”: politics, people, victim, and prison. Penal populism, as a set of ideas, is characterized primarily by the politicization of the penal issue, which becomes a key factor in electoral contests. Furthermore, in penal populism, the public plays a greater role in determining penal policies, at the expense of experts, criminologists, and criminal justice professionals. The figure of the victim takes center stage in constructing responses to crime, guiding the formulation of criminal laws and the operation of the criminal justice system. Finally, harsher sentences, particularly the use of custody, are central to penal populism, which views it as the only legitimate way to “fight crime.”
We define penal populism as a penal ideology, or an ideology of crime control in which the issue of crime assumes a central role in the political arena. This results in the development of criminal policies that prioritize popular involvement, appeal to the emotions surrounding victims, and an increased reliance on imprisonment as the sole solution to criminal activity.
In addition to the morphological structure described above, penal populism has emerged in the real world as a dominant ideology derived from neoliberalism. It can be considered a “weak” ideology, as described by Freeden (2003, 2013). This type of populism is often associated with a neoliberal (economic) political system, but it may also be present in other types of political-economic systems, such as socialism, social democracy, or populism. The relationship between neoliberalism and penal populism may be the main reason for the continuous and, as of now, almost irreversible rise of punitivity in the development of penal policies in many democratic countries in the Western world. In countries like the US and UK, where neoliberal policies have been prevalent for several decades, the ideology of penal populism has dominated crime control. Other countries that embrace neoliberalism while still retaining remnants of welfare policies, find themselves in the process of transitioning to “penal populism.” Unfortunately, Brazil seems to be in this situation.
Conclusion
The trajectory of ideologies and politics in recent times is quite intriguing. The end of the Cold War in 1989 led to a decline in the influence of the two major ideologies of the 20th century, liberalism and socialism. The spread of neoliberalism, which was able to, to some extent, unite left and right political forces around a common economic orthodoxy, diminished the former dominant ideologies. The prevalence of neoliberalism worldwide caused politics to be perceived as less of an ideological struggle and more of a pragmatic approach to managing market economies (Loader & Sparks, 2016). Political parties and leaders have stopped considering ideological programs as important, while voters no longer base their votes on ideological identification. “Law and order” policies have gained prominence in the neoliberal world and have become a significant part of political risk management and electoral disputes (Loader & Sparks, 2016). This new political scenario has led to changes in the way criminal policies are formulated. The criminal justice system has become “politicized,” and there has been an increase in popular involvement in shaping crime control mechanisms, as well as greater concern for the supposed aspirations of victims. All these factors make up a new perspective on the relationship between neoliberal policies and crime, referred to as “penal populism.” When we refer to “a new way of thinking,” we mean ideas about crime and its control; that is why we define penal populism as a true penal ideology, structured around certain fundamental concepts (politics, people, victim, and prison), and often linked in the real world to the neoliberal political ideology. However, there may be other potential combinations, such as penal populism and social democracy. The harsh penal policies of Scandinavian countries toward their immigrants demonstrate the ideological power of penal populism (Barker, 2013).
In this study, we aim at challenging, in brief, three frequent definitions of penal populism, namely: that it would merely be a political strategy; a profound and permanent shift in modern penology or a “new axis of penal power” (Pratt, 2007a: 25); or, finally, synonymous with the expansion of punitivity. The first definition is significantly reductive; the last two, excessively pessimistic.
This final statement leads us to one last reflection on the topic of penal populism, which refers to the prediction that can be made about its future. Is excessive punitiveness, or “hyperpunitiveness” (da Silva Gadino, 2021, p. 45), an inevitable characteristic of penal policies in countries where crime control is dominated by populist penal ideology? Although the prevailing view is that greater public participation in the criminal justice system leads to more punitiveness (Barker, 2006; Garland, 2021; Gomes & Almeida, 2013; Matthews, 2005; Pratt & Miao, 2019), is it possible to think differently? Can we reconcile greater public participation in criminal justice issues with less punitiveness, and if so, how?
The solution to the issue may be to deepen democracy rather than restrict it. At first glance, this approach may seem paradoxical, especially given that criminologists who criticize penal populism usually take an elitist stance on criminal justice (Shammas, 2016). They bemoan the decline of experts in formulating criminal policies and distrust the greater participation of victims in criminal justice issues. They argue that greater public involvement would lead to more punishment. However, this may not necessarily be the case. To view the criminal justice system in a new light, it’s important to address the democratic deficit in criminal justice in most Western societies. There are credible arguments in support of this perspective (Barker, 2006; Dal Santo, 2020; Dzur, 2010; Gloeckner & Ramos, 2017; Johnston, 2000; Larrauri, 2006; Loader, 2006; Shammas, 2016). The enhancement of democracy with respect to the criminal justice system would entail several structural changes, including: raising public awareness through providing informed information about the complexities of criminal justice issues (Loader, 2006); greater concern from lawmakers regarding public opinion, taking into account studies that demonstrate the presence of social support for alternative measures to imprisonment (Hough, 1996; Johnston, 2000; J. Roberts et al., 2003); providing opportunities for citizens to directly participate in criminal justice, as seen in restorative justice practices (Dzur, 2010); promoting the use of criminal sanctions that emphasize repairing the harm caused to society, such as community service; and finally, re-emphasizing the importance of prisoner reintegration (rehabilitation), encouraging the public to believe that individuals can change for the better (Larrauri, 2006).
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
Ethics Statement
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Data Availability Statement
Data sharing not applicable to this article as no datasets were generated or analyzed during the current study.