Fear management as a political instrument

It is the idiosyncrasy of each society (social, economic, political, and historical heritage model) that contributes to defining in each context who wields power and how, and identifying what mechanisms will be successful in influencing people. Punitive power and the state’s right to punish (Ius puniendi) is the institutionalised power of the state to instil fear (negative or intimidatory general deterrence) in citizens to discourage them from committing crimes. It is a form of social control par excellence. Punitive power exploits people’s fear of social exclusion and the possibility of being labelled as a criminal to subject them to its control. In order to keep these threats alive, the punitive system enshrines penalties that have evolved over time and whose main paradigm today is the prison. In order to justify punishment and the control it entails, the punitive system uses fear of crime, of the criminal, of what is different, to incite permanent social alarm. In brief, fear as a core part of domination is an essential element of the punitive system.

However, this power can be exercised in various ways. Are they all legitimate? Or only some of them? Do they all serve the same purpose? How can instilling fear become a political instrument? Without a doubt, the problem becomes more evident when fear becomes state terror, when the aim is people’s subjective internalisation of fear as a way of ensuring public security, and when governments adopt extreme security measures or legal instruments that violate rights and freedoms. Reality can be manipulated through the different institutions and mechanisms of power, as well as through the mass media (Castillo Moro, 2016, 75-76).

The role of the mass media in underpinning objectively non-existent social alarms

One of the basic questions when considering the phenomenon of public security policies, fear and emergency management, and criminal policy tendencies is this: what role do the media play? The media provide information and enable the shaping of public opinion and, in recent decades, interest in crime has become global. As Fuentes Osorio (2005, 3-4) notes, it can be said that, with regard to both the criminal phenomenon and proposed solutions, information is inaccurate, not pluralistic, and adulterated by the particular interests of the media and those who control them. This author (and others also) describes four elements that typify the role of the media in the treatment of crime:

• The media present a distorted criminal reality. The seriousness and frequency of certain incidents are exaggerated while other common criminal acts are consigned to the realm of the exceptional.

• The constant presence of the criminal phenomenon in the media, together with emphasis on its more violent manifestations also favours the entrenchment of this issue in the public agenda, as well as the formation or reinforcement of a social and personal awareness of concern about crime.

The media whip up social alarm, gloss over the problems of penal responses, and favour the development and perpetuation of prejudices about and stereotypes of delinquents and victims

• The media are not open-minded when it comes to defining social conflict and presenting proposals for intervention. They reproduce the imperfections of the market and, therefore, when reporting crime and crime policy, give preference to the views concerning criminality of the actors with the greatest socioeconomic and institutional power.
  
• The fact that individual and social concerns about crime are turned into news influences legislative policy. They are factors that put pressure on political agents who feel obliged to respond immediately and forcefully by means of criminal law.
  All in all, it can be stated that, decades ago, the mass media forsook impartiality to become a basic tool in the service of the establishment for creating collective subjectivities. As for crime, the media whip up social alarm, gloss over the problems of penal responses, and favour the development and perpetuation of prejudices about and stereotypes of delinquents (young, male, migrant, or member of an ethnic minority) and victims (creating ideal or desired victims).

Political manipulation of criminality and construction of penal myths

The claim “we’ll put an end to delinquency” is showing no sign of fatigue because it delivers an immediate political payoff (Zuloaga Lojo, 2019, 137-138). However, the focus of the expression is fallacious because it presupposes that it is possible to put an end to criminality. It should be made clear that a society without crime is impossible. Moreover, other phenomena related with this manipulation should be identified. First, there is a disjunction in the crime-punishment binomial or, in other words, a split between the number of crimes and the penalties decreed (González Sánchez, 2021, 38). What we have witnessed in recent decades is an increased resort to prison and a heightened general harshness of the system, but not an increase in criminality (González Sánchez, 2021, 38). Second, there is a connection between social and penal policies, with notable negative correlations between investment in social and welfare policies and the number of incarcerated persons (González Sánchez, 2021, 39).

Fear as a core part of domination is an essential element of the punitive system. In order to justify punishment and the control it entails, the punitive system uses fear of crime, of the criminal, of what is different, to incite permanent social alarm

In this situation where citizens have little confidence in the institutions, there is an absence of elementary instruction in the educational domain about how criminal justice works while, as we have seen, the influence in this area of television series and the media, which construct a significant array of mythologies about crime, does not exactly foster a calm approach to the problems. Mythologies can be defined as mental constructions that address cultural practices while changing in response to each place and each time. Nevertheless, it might be said that, in Spain, among the most powerful enduring myths that have been constructed about the people who commit crimes, the victims, public policies, and public opinion are the following: “immigrants are delinquents”, “young people are committing more and more crimes”, “sex offenders can’t be reformed ”, “poor people are the ones who are committing crimes”, “all victims need the same thing”, “some cases are exaggerated”, “victims aren’t interested in rehabilitation ”, “do the crime, do the time”, “more police, less crime”, “society wants more punishment”, and “crime policy is based on evidence” (Varona Martínez, Zuloaga Lojo, and Francés Lecumberri, 2019).

Punitivism as strategy: is it legitimate left-wing, or right-wing?

The foregoing describes how myth creation leads to authoritarian responses (which, in turn, reinforce the myth) and these are perfectly framed in the use and abuse of criminal law. Yet, is use and abuse of the penal system one and the same thing? Evidently not. Since the Enlightenment, there has been consensus—exquisitely questioned by penal abolitionism—that criminal law is an indispensable branch of the legal system, and that the state’s Ius puniendi (right to punish), with the necessary limits and guarantees (proportionality, ultima ratio, fragmentariness, etc.), is able to safeguard society’s most prized legally protected interests (life, physical integrity, sexual integrity, environment …), while also respecting the rights of people who offend against these legally protected interests. This use is widely deemed legitimate, though it is recognised as a strategy based on violence and fear (punishment is a necessary evil, say the criminal lawyers), though its abuse is not considered acceptable.

The starting point is the idea that the security of society depends on several structural factors (social, economic, educational, etc.) and not on greater or lesser intervention of criminal law. Rather, on the contrary, criminal intervention is evidence of the failure of security. In liberal democratic societies, criminal law is the “best” response we have so far found as a society for protecting the most important legally recognised interests from the most serious attacks.

What we have witnessed in recent decades is an increased resort to prison and a heightened general harshness of the system, but not an increase in criminality

However, intervention as prima ratio (and not ultima ratio), or constant resort to punitivism are, in themselves responses that are at variance with a social and democratic state governed by rule of law and, consequently, are an abuse of criminal law. This is also the case when the legal consequences are disproportionate. Some examples of this are the introduction of very high penalties for minor crimes against property and public health (for example, theft or drug trafficking), punishment of various types of conduct that do not protect real legally recognised interests (including adultery, abortion, in all their forms and times, and the recently questioned crimes of sedition and rebellion), and the penalty of revisable permanent imprisonment or life imprisonment. Nevertheless, analysis of what is deemed to be abuse of criminal law in terms of these limiting principles is highly complex and depends on many elements of a social and legal nature. Hence, for example, the Constitutional Court has ruled that revisable permanent imprisonment is constitutional, and most of the doctrine of the courts and, of course, public opinion do not question custodial sentences for minor crimes against property and public health. In terms of proportionality, the reformed Organic Law on the comprehensive guarantee of sexual freedom, 10/2022 is also highly controversial.

Myth creation leads to authoritarian responses and these are perfectly framed in the use and abuse of criminal law

Without a doubt, we are faced with a situation of (political and social) punitive inflation (González Sánchez, 2021, 123ff.), which encourages a more elastic approach to these limiting principles and acceptance of increasingly harsher sentences. Since 1995, when the so-called democratic Criminal Code was passed, it has been subjected to reforms about forty times. Reforms to a criminal code are necessary inasmuch as they must respond to social changes. There is nothing surprising about this. The problem is that all these reforms have entailed the establishment of more crimes and harsher penalties when this should not have to be the case. This is certainly striking, and it should be called out. I agree with Fuentes Osorio (2005, pp. 41 and 43) when he says that one of the reasons is that the criminal instrument is a measure that demonstrates the interest and responsiveness of political institutions and hence a “comfortable cushion” for the legislator. Criminal law steps in as the hero that resolves a conflict and demonstrates the competence of the government that applies it since it has become a yardstick of political change: a weak administration that does not face problems by means of penal intervention, or that is suspected of making concessions to criminals is condemned to electoral death. These dynamics hold out immediate political benefits.

Academics defend the aforementioned principles that limit the state’s right to punish and, in general, those of criminal law. However, in political and legal practice criminal law is upheld and applied as a prima ratio mechanism for resolving problems. This reflects two further issues besides those already mentioned. The first is that we live in a society with little knowledge of crime, its social causes, the various approaches, and the naturalised solution of punishment (which is almost obvious since punishment is part and parcel of our lives). Second, since the culture of a particular kind of security has been popularised, the message that has repeatedly been sent is that the iron fist is the solution.

In recent years, a clear dissociation between perception of citizen insecurity and penal reforms has occurred. The questions related with criminality are far from being seen by citizens as the most urgent problems, yet the myth that society wants more punishment remains unchanged

However, it should be noted that, in recent years, a clear dissociation between perception of citizen insecurity and penal reforms has occurred. In the decade between 2000 and 2010, when comprehensive penal reforms were carried out, basically by the Partido Popular (PP – People’s Party), one sees that they coincide with a high point in perception of citizen insecurity. Yet, in the last few years, the thoroughgoing reforms that have been introduced, this time by the Partido Socialista Obrero Español (PSOE – Spanish Socialist Workers’ Party), have not coincided with a social perception of insecurity. According to the 2022 the CIS (Centre for Sociological Research) Barometer, when asked about the main problem existing in Spain, respondents situated insecurity in the twentieth position. It is regarded as the most pressing problem by 0.5% of the population, while 1.1% situate it in second place, and 1.5% in third place or, in other words, a total of 3.1% situate it among the top three problems. Considered to be more serious are concerns like the economic crisis, unemployment, political problems in general, healthcare, the unacceptable behaviour of politicians, problems related with employment quality, climate change, and education. And, according to the CIS, the same pattern appeared in the five previous years. Hence, it would appear that in recent years, questions related with criminality are far from being seen by citizens as the most urgent problems, yet the myth that society wants more punishment remains unchanged. Moreover, studies that analyse public opinion on what measures people would take to deal with the problem of criminality are few and far between in Spain. Hence, actions are taken in the name of society, without asking the people for their opinions or carrying out research on the matter (Zuloaga Lojo, in Varona Martínez et al., 2019, p. 176).

We need to be aware of the fact that a more complex understanding of the phenomenon of criminality, and of approaches to it, is necessary. Along these lines, some areas of feminism, critical criminology, prison abolitionism, and critical restorative justice are working on new ways of thinking about crime, its relations with power, and responses to criminality from standpoints that might be less ostentatious but certainly more realistic, and that specifically cater to people, communities, and their needs.

Photography

A cameraman recording a male speaker wearing a suit at a media press conference. Author: Microgen (Shutterstock).