A Panel Analysis of Legal Culture, Political Economics, and Punishment Among 15 Western Countries, 1960–2010

• DOI: 10.1177/1057567714551093
• Author: Matthew DeMichele
• Date: 01 December 2014
• Published date: 01 December 2014
• Subject Matter: Articles

Article

A Panel Analysis of Legal

Culture, Political Economics,

and Punishment Among

15 Western Countries,

1960–2010

Matthew DeMichele

1

Abstract

I extend Sutton’s political economy of punishment thesis by including a composite measure of legal

and criminal justice practices that are hypothesized to be related to incarceration rates. I test the

association between a punishment regime–type variable composed of the nature of prosecutorial

discretion, judicial power, and the nature of lay participation with incarceration rates in 15 Western

countries between 1960 and 2010. The effects of the punishment regime variable are tested in

several time series cross-section models that correct for autocorrelation and heteroscedasticity and

include the effects of the leading political–economic correlates of punishment and homicide rates.

The results show consistent significant findings for the punishment regime–type variable, union

power, and corporatist bargaining, with mixed support for political party power, inflation, and unem-

ployment rates. These findings provide evidence for the existence of multiple cultures of Western

punishment. In the end, I suggest that multidisciplinary cross-national partnerships incorporating

researchers and governmental entities are needed to develop large comparative criminal justice

databases to enhance understanding of comparative crime and justice.

Keywords

Western Europe, comparative crime/justice, institutional corrections, corrections, legal issues,

courts/law, quantitative methods

The second half of the 20th century has been described as an era of mass incarceration (Garland,

2001), mass probation (Phelps, 2013), and mass social control (DeMichele, in press). These terms

refer to the peculiar punitive shift starting in the mid-1970s in which several countries—but, most

dramatically, the United States and other common law countries—became more reliant upon

1

RTI International, Center for Justice, Safety, and Resilience, Research Triangle Park, NC, USA

Corresponding Author:

Matthew DeMichele, RTI International, Center for Justice, Safety, and Resilience, 3040 Cornwallis Road, P.O. Box 12194,

Research Triangle Park, NC 27709, USA.

Email: mdemichele@rti.org

International CriminalJustice Review

2014, Vol. 24(4) 360-376

ª2014 Georgia State University

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DOI: 10.1177/1057567714551093

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criminal justice mechanisms to respond to social marginality (Beckett & Western, 2001; Garland,

2001; Simon, 2007). Garland’s ‘‘culture of control’’ thesis has framed explanations of comparative

punishment for some time. But more recently, scholars have questioned whether there is one ‘‘cul-

ture of control’’ or if it is more appropriate to investigate ‘‘multiple cultures of control’’ (DeMichele,

2013; Lacey, 2008; Nelken, 2009). In this article, I build on Sutton’s political–economic model of

punishment by including a legal institutional measure combining prosecutorial discretion, lay par-

ticipation, and trial structure with a pooled data set of 15 Western countries.

1

Despite the massive growth in corrections populations, there is little research explaining the dif-

ferences in the incarceration rates among Western countries. For instance, what accounts for the

United States having between 4 and 8 times the average incarceration rate as Germany and the Neth-

erlands, respectively, between 1960 and 2010? And, further, why does Germany have nearly twice

the average amount of incarceration as the Netherlands over this same period (Lappi-Seppa¨la¨,

2011)? The leading scholarship on punishment focuses on differences in political economics as

countries with strong left-oriented political parties (e.g., Social Democrats), high union membership

(Greenberg, 1999; Jacobs & Kleban, 2003; Lappi-Seppa¨la¨, 2011; Sutton, 2004, 2013), and strong

welfare systems are associated with less incarceration (Downes & Hansen, 2006; Garland, 1985).

I contribute to this scholarship by suggesting that countries can be grouped into three punishment

regime types that are rooted in different legal cultures (i.e., substantive, formal, and mixed). The

common law countries (i.e., Australia, Canada, New Zealand, United Kingdom, and United States)

consist of a populist regime, continental Europe (i.e., Austria, Belgium, France, Italy, Germany, and

the Netherlands) fits into a bureaucratic regime, and Scandinavia

2

(i.e., Denmark, Finland, Norway,

and Sweden) is characterized as a collective regime.

The theoretical approach adapts a Weberian typological method popularized by Espin g-

Anderson’s (1990) finding of three worlds (or regimes) of welfare capitalism supported by spe-

cific political–economic frameworks. His welfare state regime types provided comparative

researchers with a typological method and theory to explain different approaches to social pol-

icies. Later, Cavadino and Dignan (2006) grouped countries according to political–economic

structures using Esping-Anderson’s welfare state regime–type variables to explain incarceration

rate variation. They found higher levels of neoliberalism (i.e., common law countries) are asso-

ciated with a greater preference for exclusionary policy choices (e.g., low welfare and high

incarceration), whereas other types of political–economic preferences support inclusive policies

(e.g., social democracy and corporatism). The regime-type approach builds on Lacey’s (2008)

recognition that historically embedded legal institutions structure the everyday decision-making

powers of judges, prosecutors, police, and others by providing the bureaucr atic definitions to

the roles, rules, and incentive structures for legal actors.

In this article, I use time-series cross-section (TSCS) regression models of 15 Western countries

from 1960 to 2010 to examine the plausibility of a regime-type explanation of punishment. First, I

review prior comparative research explaining incarceration rate variation to demonstrate the impor-

tance of political–economic structures and build mostly from Sutton’s (2004) political–economic

model. Second, I sketch out the punishment regime–type explanation that I have presented previ-

ously using descriptive comparative data (DeMichele, 2013). Next, I describe the data and analytic

strategy before presenting the findings. In the end, I suggest that a regime-type approach of punish-

ment is a potential framework to study how legal families (e.g., common and civil) are enacted by

broader social structures (e.g., political economics) that create organizational contexts to supply the

rules for how practitioners are to carry out their jobs (e.g., arrest procedures, prosecutorial and judi-

cial discretion, and correctional guard training requirements). These organizational rules become

institutionalized (Scott, 2001) and determine the decision-making capacity of criminal justice and

legal practitioners who have consequences on the type (Whitman, 2003) and amount of punishment

(DeMichele, 2013; Lacey, 2008; Nelken, 2009; Savelsberg, 1992).

DeMichele 361