CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, April 10, 2019

Pratt & Miao on Risk and Populism

John Pratt and Michelle Miao (Victoria University of Wellington - Institute of Criminology and The Chinese University of Hong Kong, Faculty of Law) have posted Risk, Populism and Criminal Law (New Criminal Law Review (2019, Forthcoming)) on SSRN. Here is the abstract:
This article outlines the way in which criminal law in the main English speaking ones especially is being broadened from its essentially normative and moral response to criminal wrongdoing to include the capacity to act as a preventive force. As well as reacting to crime that has been committed, it also attempts to control the risk of future crime. In explaining these developments, it is argued that the emphasis on controlling risk has become the response to issues of uncertainty and insecurity brought about by the post 1970s economic and social restructuring of these societies, reflecting the normalization of risk control. Its emphasis on utilitarianism and efficiency then overrides many of the modernist assumptions previously associated with criminal law. To control risk, it makes use, for example, of hybrid and retrospective legislation, while reversing or lowering burdens of proof if these are thought to unfairly advantage offenders/defendants. This reshaping of criminal law also necessitates a new understanding of human rights.
Instead of the previous emphasis given to protecting individual rights from abuses of state power, the emphasis has shifted to protecting the public from those individuals thought to put their well-being at risk. But where do these criminal law characteristics of ‘risk society’ now sit, given the contemporary rise of populist politics? Populism promises an end to risk and the uncertainties and anxieties this has brought about. But rather than reversing the preventive capabilities of criminal law, the article argues that it is already extending them. This is because populism continuously needs to find new victims or potential victims that it embraces and pledges to defend to the utmost against their assailants, law-breakers or otherwise, real or imaginary. Now the focus of risk control measures embraces new populations – refugees, asylum seekers, immigrants of all kinds, legal or otherwise. Conventions such as the rule of law and the separation of powers that might previously have limited such intervention are brushed aside as outmoded examples of elitist thinking. Instead, security must be prioritized over residual concerns about due process, while also prioritizing public protection over individual rights.

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