Neoliberal Penality and State Legitimacy: Politics of Amnesty in Turkey during the AKP Period

Published date01 December 2017
Date01 December 2017
DOIhttp://doi.org/10.1111/lasr.12296
Neoliberal Penality and State Legitimacy: Politics of
Amnesty in Turkey during the AKP Period
_
Irem Yıldırım Tuna Kuyucu
General amnestyis an e xtraordinarypolicy mostly used in the aftermath of civil
wars or regime transition to maintain political stability. In Turkey, however,
amnesties have historically been used to resolve the chronic problems of the
criminal justice system. This radically changed after the Justice and Develop-
ment Party (AKP) came to power in 2002, which has taken a sharp anti-
amnesty position. This shift should be understood as part of AKP’s neoliberal
orientation in criminal justice policies that has increased the dose of punitive-
ness, emphasized individual responsibility of offenders, and enhanced the
organizationalefficiency of institutions. Central to this neoliberalpenal orienta-
tion is the party’s neopopulist ideology constructed on an image of a strong
state that (i) is capable of dealing with structural problems without having to
recourse to extraordinary measures,(ii) no longer sees criminals as “victims of
fate”, (iii) prioritizes victims’ rights. Our analysis contributes to the mounting
literature on neoliberal penaltyin two ways: first is by bringing the question of
why states forgive at center stage when most work focuses exclusively on how
and why states punish; second is by paying closer attention to how developing
country governments with limited financial, logistical, and administrative
resources manage thetensions and contradictions that neoliberal penal policies
bring forth. Our arguments are based on official reports; in-depth interviews
with legal professionals;and descriptive statistics on the criminal justice system.
Since 2002, the year when the Justice and Development Party
(AKP) came to power, the Turkish criminal justice system has
undergone major transformations. Between 2002 and 2016, the
number of incarcerated people increased from around 60,000 to
more than 187,000, raising the rate of incarceration from 85 to
238 per 100,000 people, which places Turkey on fifth place
among European countries in terms of incarceration rate (Inter-
national Centre for Prison Studies 2016; Turkish Statistical Insti-
tute 2016) (see Table 1). Interestingly, this upward trend has
stayed more or less constant during the entire period that AKP
We would like to thank Arda Ibiko
glu and LSR’s anonymous reviewers for their valu-
able feedback and criticism. _
Irem Yıldırım wishes to thank TUB_
ITAK for generously sup-
porting her research. TunaKuyucu wishes to thank the Urban Studies Foundation and the
University of Edinburgh’s libraries for generously providing the much needed time, space
and resources to write.
Please direct all correspondence to Bo
gazic¸i University, Department of Sociology.PK. 2
Bebek, Istanbul 34342, Turkey. email: tuna.kuyucu@boun.edu.tr.
Law & Society Review, Volume 51, Number 4 (2017)
V
C2017 Law and Society Association. All rights reserved.
859
has governed the country, irrespective of the dose of authoritari-
anism that the party has used, which significantly increased after
2009. To cope with this dramatic rise, the government built 105
new prisons, appointed more than 5,000 new judges and prosecu-
tors and institutionalized new mechanisms of control, such as pro-
bation and electronic surveillance of released criminals, for the first
time in the county’s history.
1
However, none of these measures has
conclusively resolved the recurring twin problems of the criminal
justice system—i.e., overpopulation of prisons and very heavy
workload of courts. A recent report shows that despite new prison
construction there are currently only 565 beds available for new
prisoners.
2
Moreover, the number of cases brought to courts
increased from 4.7 million in 2,000 to 6.5 million in 2012. Turkish
judges are responsible for 1,078 cases annually whereas the aver-
age in European countries is only 200 (Ministry of Justice 2011:22).
The traditional mechanism of dealing with the overburdened
criminal justice system and overcrowded prisons in Turkey has
been the issuance of general amnesties for people convicted of
criminal offences. In fact, with 157 amnesties since 1923, 11 of
which were general amnesties, the country tops the world in the
number of amnesties passed (Ankara Chamber of Commerce
2004; Cengiz and Gazialem 2000).
3
Amnesty, in a sense, acted as
Table1. Prison Population Rate in Europe (2016)
Ranking
Country Prison Population Rate
(per 100,000 inhabitants)
1 Russian Federation 451
2 Belarus 306
3 Georgia 262
4 Lithuania 254
5 Turkey238
6 Azerbaijan 236
7 Latvia 224
8 Estonia 223
9 Moldova (Republic of) 222
10 Czech Republic 205
Source. International Centre for Prison Studies (2016).
1
_
Is¸te T
urkiye’dekihakim ve savcı sayısı”, Star, 12 May 2016, http://haber.star.com.tr/
guncel/iste-turkiyedeki-hakim-ve-savci-sayisi/haber-1110722 (accessed 1 July 2016).
2
Selin Girit, “Turkiye’decezaevlerinin kapasitesi neden doluyor?” BBC T
urk c¸e, 3 Feb-
ruary 2016, http://www.bbc.com/turkce/haberler/2016/02/160202_cezaevleri_kapasite_
selingirit (accessed 16 August 2016).
3
Throughout the article, we use “amnesty” as an umbrella term to refer to the release
of criminal offenders. There are problems with this usage given the conceptual differences
between “amnesty” and “pardon.” The former is generally used to refer to the release of
political offenders in post-conflict situations whereas the latter is used for other types of
crimes. Amnesty is also generally declared before prosecution has been initiated whereas a
pardon is announced after prosecution. A final distinction regards the fact that a pardon is
usually granted to an individual while amnesty is mostly granted to a group/category of peo-
ple. These conceptual differences do not, however, make much sense in the case of Turkey
860 Neoliberal Penality and State Legitimacy
an “emergency button” to be utilized whenever the system got
clogged (Kocasakal 2010: 94). Even though the surge in incarcer-
ation rates since 2002 exacerbated the systemic challenges to the
criminal justice system, the AKP has strongly rejected amnesty as
a policy of alleviating these structural problems. Leading party
members have repeatedly claimed that the state will no longer
grant amnesty to criminals and that a new general amnesty is
entirely out of question. As the founder and the uncontested
leader of the party, Mr. Erdogan has stated during his time as
Prime Minister (PM), “For a long time, I’ve been saying that
there is no such thing as general amnesty on our agenda. I have
said it so many times...There is no such thing, definitely not”.
4
What makes the Turkish experience with amnesty more inter-
esting is the fact that even though amnesty is granted across the
world almost exclusively for “political crimes,” particularly during
periods of regime transition or collapse (Lessa and Payne 2012;
Mallinder 2008; Popkin and Bhuta 1999), Turkish amnesties
have rarely covered political crimes, or “crimes against the state”
until the AKP period.
5
AKP’s approach, however, reverses this
past trend and stresses that the state can only “pardon” offences
committed against itself—i.e., political crimes and should not
interfere when the criminal act concerns another person’s right
to life or property. Since the government has not granted any
form of amnesty yet, AKP’s approval of political amnesty remains
so far at the discursive level. However, we argue that this discur-
sive shift regarding political amnesty is significant because it
amounts to a redefinition of the politically legitimate boundaries
of amnesty, which makes it quite likely for a political amnesty to
be issued in the future.
In this article, we use the changes in the Turkish amnesty
field to understand how a developing country government com-
mitted to a “tough-on-crime” agenda manages the increasing ten-
sion between the instrumental requirements of its overburdened
criminal justice system and its ideological and political
given the fact that general amnesties in the country contain elements of both practices.
Therefore, we decided to avoid making such a conceptual distinction and use “amnesty”
throughout the article. For an extended discussion of the differences between these terms
and practices, see Moore (1997).
4
TarıkIs¸ık, “Bas¸bakan: Genel Af Kesinlikle Yok, Ben Hayallerimi Anlatıyorum,” Rad-
ikal. 19 November 2013, http://www.radikal.com.tr/politika/basbakan-erdogan-genel-af-
kesinlikle-yok-ben-hayallerimi-anlatiyorum-1161707/ (accessed 16 September 2015).
5
Amnesty for political crimes had, on very few occasions, been enacted in Turkey in
the pre-AKP period, such as the pardoning of military officers who staged the 1960 coup
d’
etat or the partial amnesty offered in 1962 to certain members of the Democrat Party
accused of violating the Constitution. Compared with non-political crimes, however, politi-
cal offenses have rarely been included to the scope of amnesty laws up until the AKP period
in Turkey.
Yıldırım & Kuyucu 861

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