Conceptualizing and measuring “punitiveness” in contemporary advanced democracies

Abstract

This article addresses a key political question regarding the relationship between states and their citizens: how harsh are judicial systems in their punishment of those who deviate from the law? Punitiveness is a fraught concept in the existing literature and robust measurement methods maximizing conceptual complexity are lacking. Here I develop a functional approach to punitiveness through a revised conceptualization and operationalization of this key variable while cautioning against the solitary use of incarceration rates to measure state intention. Punitiveness is conceptually disaggregated into three main components: (1) a commitment to punishment over rehabilitation, (2) the degree of harshness of response to crime (i.e., a longer sentence in prison), and (3) the lack of a logical progression of punishment based on the severity of crime committed or intent of the offender. These axes are further disaggregated into measurable indicators to build a novel index of punitiveness (P-Index) from the legal codes of 26 countries. Ultimately, this rules-as-data measure offers researchers purchase on the puzzling variation in punitiveness across contexts, which persists regardless of current and historical crime levels, offering particular utility for supply-side political-economic explanations.