Penalismo Mágico

Ollero Perán, Jorge Elías (2021) Penalismo mágico: cómo transformar la creencia de que el castigo solucionará todos nuestros problemas sociales y políticos (Magical penalism: how to transform the belief that punishment will solve all our social and political problems) Sevilla: Aconcagua Libros 978 8 412 39410 8

According to the Merriam-Webster dictionary, magic can be defined as ‘the use of means (such as charms or spells) believed to have supernatural power over natural forces.’ The same dictionary defines wishful thinking as ‘the attribution of reality to what one wishes to be true or the tenuous justification of what one wants to believe.’

In my opinion, the book by Jorge E. Ollero helps us to understand the profound harm caused by a social misunderstanding of the first concept (magic), deployed as an adjective for penalism, together with a persistent use of the second (wishful thinking) in the fields of criminal policy and politics.

Ollero defines his text, written in Spanish, as a pamphlet or manifesto (pp. 27 and 40), beyond academic literature. Following the sense given by the Austrian philosopher and priest, Ivan Illich (1973), Ollero invites us to a social debate through an easy to read discourse, including personal experiences of his work with men and women who entered the penal system and are also victims of social injustice (see pp. 98–99 footnote 5; p. 125 footnote 7; and p. 158). This personal experience is complemented by a grounded line of reasoning and quantitative evidence. Thus, the author tries to offer a clear and pleasant read to anyone interested in knowing more about how penalism works and what it causes in today’s society, offering, at the same time, some proposals for change.

Ollero aims at an archaeology of what he defines as magical penalism, understood as a form of governing through selective and authoritarian punitiveness. This critical standpoint should be particularly valued, given Ollero’s professional background as a jurist in the Spanish penal administration, a mediator with a Masters in Social and Political Thought from Sussex University, an activist in the field of prisoners’ rights and human rights in general, as well as current director of the restorative justice service of the Government of Navarre.

The book starts with three prefaces by different criminal policy stakeholders, all women: a criminal justice judge, an activist and a human rights lawyer. Right from the start, this multi-professional preface increases interest in the book. Later, in the preface and the introduction, the author situates himself against any kind of punitive ideology coming from the left or right of the political spectrum, even if he is clearly situated in the left. Ollero defines magical penalism as a passion, fascination or faith in penal sanctions, used as a tool to sell the solution for complex problems (p. 30). With a psychological or emotional basis, irrational but real, this penalism favours and legitimises punitive practices that are not effective (p. 31). As explained in the seven chapters of the book, the ultimate consequence of this magical penalism is a fascist society with diffuse limits for state coercive power and where fear becomes the unique source of social cohesion (p. 31), promoting individualism and a lack of interpersonal and institutional trust. In this way, criminal justice becomes the new magic to calm our postmodern insecurities (p. 35).

Chapter one develops the history of the consolidation of the penal state in Spain, since the death of the dictator Franco to 2020. It is argued that Spain could have constructed a limited welfare state during the seventies and eighties, in part thanks to strong social movements that also influenced criminal policy (pp. 59–61 and 80–90). However, penal punitive reforms started in the nineties with the 1992 Citizen Security Act, decades later transformed into a more repressive 2015 Act, nicknamed ‘Ley Mordaza’ (‘Gag Law’). This was followed by the 1995 Criminal Code and the integration of the penal institutions within the Ministry of Interior in 1996 (see the table on p. 77). According to Ollero, these political options should be understood within a general context of the economic crisis and consolidating neoliberalism (p. 65), with repressive responses, particularly addressed to control marginalised populations without resources (chapter two) and people under drug addictions (chapter three). Even if the different political parties in rule in Spain made different criminal policies, magic penalism has been used in different fields by all of them, including gender violence (IPV) (chapter four), crimmigration (chapter five), and the criminalisation of protests, where the author mentions the Catalonian political conflict (chapter six). In the final chapter, defining himself as an abolitionist, reductionist and reformer (pp. 108 and 168), Ollero proposes penal moderation (decarceration, reduction in the use and length of prison sentences and decriminalisation; all these processes would facilitate reinvestment in social prevention), together with restorative justice. The book ends with an epilogue where the reference to the pandemic helps to understand the urgent need to look for opportunities of change within ‘systemic chaos’ (p. 171).

Ollero’s book constitutes a good manifesto for anyone interested in debating criminal policy and restorative justice, in or outside Spain, mainly because it offers constructive criticism by giving concrete proposals that could be rethought for other contexts where an overuse of prison also exists (Jacobson et al., 2017). The book starts from and bases the argument on Spain, but it is not about Spain. In the end, Ollero questions the global hegemonic carceral thinking. It highlights the Spanish paradox of a country where the crime indices are low, but the incarceration rate is high. Spain incarcerates seven times more than in the last years of Francoism (p. 33), even if this data should be read in relative numbers and even if numbers are decreasing in recent years. In the book, the reasons behind that paradox are explained as a mixture of an evolution towards an increasing penal state, where the distribution of resources and welfare protection diminish, at the same time as coercion for certain activities of certain populations increases (Beiras, 2005).

With the help of the media sustaining the introduction of certain vocabularies of public alarm into the public agenda (p. 65), this neoliberal penal state governs through popular punitiveness and nurtures from an existing irrationality defined as magical penalism (pp. 154 and 160). According to the author, this penal state corresponds with a more authoritarian state that, in a vicious circle that provokes further harms (pp. 102 and 104), promotes individualism and a lack of social activism in a climate of manipulation of collective emotions, in a search for scapegoats (Freiberg, 2001).

According to Ollero, most people seem to distrust the belief that a society with social justice is better for all, in terms of social distribution and protection. However, those same people trust politicians when they promise them more personal safety by criminalising and punishing certain behaviours of certain segments of the society — to which some of them belong — when, at the same time, those politicians favour political decisions that increase economic inequality that selectively impacts on incarceration rates (more than in crime rates).

The explanation for increasing penalism given by Ollero (perhaps in too general terms in certain aspects that would have deserved more nuances on a wide array of interlocking factors) is not new in Spanish or comparative literature, but the most interesting part of this book comes when approaching the socio-cultural explanations of this punitive abracadabra, something already studied in Spain under the terms of cliché (Gracia and Jiménez, 2016) or myth (Varona Martínez, 2019). It could be argued that magical penalism has always existed, but it is important to understand its connection with the mechanisms of political manipulation of collective emotions. Moreover, it is of utmost relevance to enter into a public debate about potential routes to stop further harms. In this sense, Ollero presents a concrete proposal to address a significant reduction of the 70% of the Spanish penal population (related to property crimes, drug related crimes and intimate partner violence against women). Being thought either as complementary sanction or alternative to prison, or as an alternative to the whole criminal justice system itself — particularly if developed at the local level as community mediation — restorative justice constitutes a significant part of Ollero’s proposals to revert the penal state. Ollero includes an interesting reference to the Romani culture on legal pluralism (p. 161), although he should also consider the risks of harming the rights of certain members of that minority (Varona Martínez, 1998).

Furthermore, Ollero proposes that restorative justice has to become feminist (p. 162), integrating the principles of truth, justice, reparation and guarantees of non-repetition of international standards for gross violation of human rights (p. 163). However, the book does not address specifically the debate on the differences between transformative and restorative justice. Nevertheless, Ollero proposes restorative process for the historical harms caused to women by machismo and patriarchy (p. 165), something that might be parallel to transitional justice processes with a restorative perspective too. Interestingly, Ollero does mention the emerging debate on climate justice and ecofeminism.

In any case, restorative justice is not only about healing the victim’s emotional wounds by activating offender’s accountability (p. 159) (see, among others, Pemberton and Vanfraechem, 2015). In line with the general argument of the book, the challenge is to scale up the basic values of restorative justice, understood as a complex environment that makes sense (not so much in cognitive, emotional and/or behavioural terms, but in more coherent and holistic living terms) to different social agents (including non-human beings) in conflict. That means favouring spelling out, in multiple languages and rites, the restorative abracadabra, by merging constructive reasons and emotions, that might help to minimise criminal politics as harming sectarianism.

I have very much enjoyed reading this book that I will use to enhance the debate with my young students, something that I would like to recommend to other potential readers. Having read it during Christmas when I could enjoy watching some films with my family, I found resonances with the movies Don’t look up and Encanto. I think Ollero’s book is more related to the first one in analysing the practice of wishful thinking in penal matters, but it also provides hope for a new ethical imagination related to restorative justice, in the best sense of the Latin American literature of magic realism, somehow reflected in the movie Encanto. However, beyond Walt Disney scenarios, I am afraid that believers of magic penalism will not read the book. Nevertheless, the relevant issue here is to open new routes to create public spaces for difficult conversations, offering a tool for critical conviviality (p. 27), beyond violent polarisation.

Ollero is successful in questioning the culture, the glamour and the cultural prestige of violence in the penal arena, particularly by reinterpreting Erich Fromm’s Escape from Freedom (1941) and authoritarian trends in today neo-liberal formats (p. 84). Wishful thinking operates against evidence, rationality or complex reality. In this sense, Ollero helps us to think about the abracadabra of restorative justice, understood in a positive sense, that is, as the keys to expand the restorative justice culture to create new myths to live together, minimising interpersonal, social, institutional and state violence (pp. 28 and 36–37).

Gema Varona is a senior lecturer of Victimology and Criminal Policy at the University of the Basque Country. She is the coordinator of the Restorative Justice Theory & Practice Lab at the same University. 

See parts of Ollero’s book, with no available translation into English at the moment, at https://penalismomagico.net/.  The source of images in this article is also the website. 

Beiras, Iñaki Rivera, "State form, labour market and penal system: the new punitive rationality in context", Punishment & Society 7, 2 (2005), pp. 167--182. https://doi.org/10.1177/1462474505050441.

Freiberg, Arie, "Affective versus effective justice: instrumentalism and emotionalism in criminal justice", Punishment & Society 3, 2 (2001), pp. 265--278. https://doi.org/10.1177/14624740122228320.

Fromm, Erich, Escape from freedom (New York: Farrar & Rinehart, 1941).

Gracia and Jiménez 2016Gracia, Jorge and Jiménez, Daniel, eds., Tristes tópicos: representaciones sociales desenfocadas (Zaragoza: Laboratorio de Sociología Jurídica: Universidad de Zaragoza, 2016).

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Varona Martínez, Gema, La mediación reparadora como estrategia de control social: una perspectiva criminológica (Granada: Comares, 1998).

Varona Martínez 2019Varona Martínez, Gema, Mitos sobre delincuentes y víctimas: argumentos contra la falsedad y la manipulación (Madrid: Catarata, 2019).

Published on 8 June 2022.