1. To what extent can we talk of U.S. influences on British crime control policy?

; The idea of Policy transfer with regards to crime has become an area of widespread research in recent years. (Christie, 2000; Nellis, 2000; Garland, 2001; Jones and Newburn, 2002a). While policy transfer can be seen between a variety of countries, this paper will focus particularly on the policy transfer between the US and the UK. To do this, this paper will investigate how three different policies found within the British criminal justice system have developed out of US government policy. These three policies are; Zero Tolerance, Three Strikes and Electronic Tagging.

Before looking at these policies in detail, it is important to gain an understanding of the relationship and history between the US and the UK before we can understand the logic behind their sharing of policies. This paper will therefore follow a three-fold process. Firstly it will take an in depth look at the relationship between the two countries. Secondly it will discuss the literature behind policy transfer with particular focus on the theoretical frameworks surrounding Policy Transfer, and thirdly it will take a look at three examples of policy transfer and finally; it will consider the limitations of policy transfer and ways in which it could be further examined.

The Relationship between the US and UK.: The US and Britain have a long withstanding working relationship dating back more than 200 years since the US declared independence from Britain. Their allegiance expanded when they fought together in World War 1, and in World War II the United States came to the defence of the United Kingdom. The two countries become stronger allies during the Cold War and Gulf War and now remain two of only five members of the United Nations Security Council with permanent seats and veto power over all council actions. As such, it is no surprise that the two governments are in constant discussion and coordination. The Literature:

This section will seek to provide a general overview of the origins and developments of the Policy Transfer approach. Dolowitz and Marsh (1994) define policy transfer as a process in which knowledge about policies, administrative arrangements, institutions etc., in one time and/or place is used in the development of policies, administrative arrangements, and institutions in another time and/or place

Two main theories are typically used to explain this transfer of these crime control policy: a structuralist approach and an agency-led approach. A structuralist approach cites changes in the economic or social structure or culture of a nation as reasons why crime control policies are becoming transnational. An agency-led approach focuses on political decision-making and the degree of international influence involved in policy transference.
Taking a structuralist approach; the work by Richard Rose describes policy transfer as being fungible, that is, capable of being put into effect in more than one place (Rose, 1993:21). Roses work is perhaps the first to set out a comprehensive theory of how and why governments from one jurisdiction seek to use knowledge and information about policies and programmes in other places as part of their policy-making processes. At the centre of his theoretical proposal lay three key claims. First, that in a world where information flows globally, governments are in a position to obtain lessons about the way policies and programmes work elsewhere if required. According to Rose (2005:16), a lesson is the outcome of learning, and thus lesson-drawing is first and above all a matter of learning (see also Bennett, 1991a). Secondly, Rose introduces the concept of prospective evaluation as a means to hypothesize under what conditions a foreign program might successfully work if transferred to a different setting (Rose, 1993: 33). Thirdly, Rose underlines that governments will only engage in lesson-drawing activities when dissatisfaction about the status quo emerges:

Bennett's (1991) model of policy convergence provides a framework, exploring the routes of policy transfer. He defines four routes in order to explain policy transfer; these being; emulation,elite-networking,harmonization, and penetration
ROUTES OF POLICY TRANSFER:
 Emulation . Voluntary form of policy transfer Deliberate drawing of lessons . Intentional imitation of policy . Examples include: Welfare to work, independence of the Bank of England .

Elite-networking
Sharing of expertise & information . Growth of networks of professionals . Regular interaction at the supra-national level
.

Harmonization
Driven by formal intergovernmental organisations & structures . Increasing
.

globalisation & interdependence . E.g. Incorporation of the European Convention on Human Rights into British law

Penetration
Involves coercion Nation states forced to conform to particular policy developments driven by outside actors . Examples include IMF & World Bank conditions for loans
. .

David Garlands looks at the aspect of policy transfer from a structuralist approach and suggests that the shared crime control policy in both the US and Britain represent a reconfigured complex of interlocking structures and strategies that are themselves composed of old and new elements, the old revised and reoriented by a new operation context (23). He believed that these policies are not driven solely by criminological considerations but also by common cultural experience.

AGENT LED:
A third contribution of this second generation studies has been to broaden the number and kind of actors that are crucially involved in policy transfer studies, as well as ways in which they interact. Whereas the pioneering works of Westney and Rose (but also those in the Diffusion tradition) centred their attention in the role played by politicians and civil servants, later works have underlined that international organizations, epistemic communities, pressure groups, policy entrepreneurs, consultants, and non-government organizations might also play a key role in the multi-level exchanges (Evans and Davies, 1999) that take place during the transfer processes (Stone, 1999, 2000; Mintrom, 1997; Evans and Davies, 1999; Dolowitz and Marsh, 2000; Mossberger, 1999).

Jones and Newburn conducted reviews of the shared policies between United States and the United Kingdom, however unlike Garland, they took on an agency-led approach. While their findings do find some evidence that common cultural experiences may have some role to play behind the shared policies, they also found that the similarities and differences between UK and US policies may reflect agency and institutions more than cultural experience.

A fourth question that has been continuously present in recent research is to what extent cross-national policy transfer (or diffusion) is actually based on learning from others experiences. From the Policy Transfer literature side, Mossberger and Wolman (2002) put forward a set of criteria to assess whether actors involved in policy transfer actually engage in prospective policy evaluation. After reviewing a number of cases, they found out that there seems to be limited learning going on, as governments generally limited their information search to one experience and did not necessarily noticed variables that are critical but subtle, such as policy interactions and cultural variables (Mossberger and Wolman, 2002: 436437). Similarly, using an information theory approach, Wolman and Page (2002) researched how local government policymakers involved in policy transfer learn about other experiences, including which sources they use, how they assessed the information received, and how they used in transfer. They found out that while a high proportion of regeneration partnerships agree that learning from the experience of other local authorities is important and indicate that they engage in such activity, only a small minority of partnership officials state that it plays a big or significant role in their decision-making (Wolman and Page, 2002:497). Put together, these works refine Roses initial concerns about lesson-drawing and prospective evaluation, and also offer useful guides for researching a crucial aspect of the policy transfer process related to how policymakers learn about other experiences. What is transferred and why. Mossbergers work (2000) on the spread of enterprise zones across American states has shown that sometimes it is only a policy label that gets transferred, and not whole programmes, policies, or institutions. Similarly, in his study about state adoption of various social policy legislations, Karch (2007:149) says that officials might choose to enact the same policy innovation, but the specific provisions of these policies might differ so substantially that it is difficult to believe that they fall under the same heading. When studying the supposed international convergence around New Public Management reforms, Pollitt (2001) suggests that countries have certainly borrowed programs and reform initiatives, but also labels, titles, and talk (and not necessarily the practices themselves) (see also Bennett, 1991b). Finally, Weylands study (2006:221; see also Weyland, 2005) on the diffusion of social policy reforms in Latin America shows that the existence of a clear model might ease processes of cross-national diffusion. All of this would seem to suggest that what is transferred is not only an issue related with matters of degree (from copying to inspiration, as Rose would put it; see also Laking and Norman, 2007). It is also linked with the main
Mauricio I. Dussauge Laguna, LSE

From Lesson-Drawing to Bounded Transfer Paper to be presented at the 14th International Research Society for Public Management Conference Berne, Switzerland, April 7th, 2010 Draft only. Comments welcome. Please do not quote.

10 contents of the policy transferred, and with the purposes of the transfer, which might focus on functional needs and symbolic objectives alike.

In order to illustrate the development of certain US penal policies into the British legal system, this paper is going to highlight three penal policy transfers that have occurred in recent years.
Policy Development:

Three strikes: Originally adopted in US state of California Incorporated into federal law in 1995 Adopted in the UK in the 1990s Promoted by Michael Howard (1995) The Crime (Sentences) Act 1997 This paper focuses upon the area of sentencing policy and, in particular, the emergence of socalled two and three strikes sentencing policies in the United States and the United Kingdom. The paper outlines the contrasting forms and variable impacts of these sentencing policies in different jurisdictions. In particular, it examines the relationship between symbolic and substantial dimensions of policy in contrasting jurisdictions, the degree to which differences are related to the strategic intentions of politicians and policy makers, and the mediating factors of varying legal and political institutions and cultures. The central argument of the paper is that in the context of the political institutions and cultures of some US states, the relationship between symbol and substance is much closer than is the case in other jurisdictions, not least that of the United Kingdom. Zero Tolerance: First emerged in the USA under Reagan Administration 1980s Associated with policing in NYC Broken Windows thesis Adopted in the UK - Kings Cross - Hartlepool

Electronic tagging: Originated in the USA in early 1980s No.s of offenders 100 in 1986 to 12,000 in 1992

Trials in UK in 1989-90 Relevant legislation: Criminal Justice Act 1991 Crime (Sentences) Act 1997 Crime and Disorder Act 1998

Through these examples, the authors argue that an understanding of the structural and cultural context in which policies are developed is imperative to gaining a true understanding of transnational policy making. Furthermore, the examples show how detailed studies of how policies come about is also crucial to understanding our increasingly global world of criminal justice. Notes, references The most significant contribution of this book is to bring a rigorous model of policy transfer from the political science literature to bear on the issue of crime control policy.

Different Policies: Pressures for change typically encounter counterpressures engendered by what political scientists have come to call path dependency the resistance to change that generally surrounds long-established institutional arrangements (Pierson, 2004). There are always powerful interests who would lose influence or income from proposed legal changes. Lawyers, judges, and legal scholars are usually quick to point out how proposed legal transplants would clash with long established laws, legal principles, and institutional practices, or would have unpredictable and probably unwelcome consequences. Even if adopting a legal transplant seems necessary on political or economic grounds, those committed to current ways of law, for either material or idealistic reasons, are likely to work assiduously to prune the transplant to fit their own values and to mesh with existing arrangements. Thus the factors that have increased adversarial legalism in the United States, even if now operating in Europe, encounter there a very different set of cultural and institutional traditions. Those traditions, and their influential adherents, impede and redirect the slide toward Americanization of European law, and are likely to do so in the foreseeable future. Unlike America's legal system which separates state from federal courts (and legal systems including judges), Britain includes the lowest criminal courts, called Magistrate's Courts, which deal with minor offenses. "More serious cases and ones appeal from the Magistrates Courts, are heard in the Crown Court (Queen's Bench Division). Cases are appealed to the

Court of Appeal (Criminal Division." (Carter 2001 2) When one says that the House of Lords is more or less the equal of The U.S. Supreme Court, it has to be stated that the House's judicial functions are quite separate from its legislative work. "...cases are heard by up to 13 senior judges known as Law Lords." (Carter 2001 2) It is also interesting to note that Scotland and Northern Ireland have different legal systems, separate from that of England and Wales. Whereas the U.S. has an Attorney-General in charge of the legal system in the Executive branch, and the Supreme Court and Federal courts serving in the balance of power structure of the U.S. Constitution, in Britain it is the Home Secretary who has "overall responsibility for the criminal justice system in England and Wales, and for advising the Queen on the exercise of the royal prerogative of mercy to pardon a person convicted of a crime..." (Britannia 2001 1) Under the U.S. Constitution, the President has pardon power, and some of that was clearly demonstrated in some of the Presidential pardons that were handed out shortly before Clinton left office. Some of these pardons, in American jurisprudence, are political, of course.

Trial by jury is different, as well. In the U.S., there is a jury composed of one's peers, and the jurors are chosen, not by the court or by the prosecution or defense per se, but by a willingness to agree on who shall serve and who shall be eliminated (or excused). The jury is not chosen by the Crown, or the Queen's Counsel, or any government-affiliated entity in the U.S. However, the idea of what we now know as a "grand jury" was actually developed by Henry II in the twelfth century. Then there is the matter of the death penalty. As can be seen on various Internet web sites, sponsored by Amnesty International. The U.S. is far and away the greatest "sinner" when it comes not merely to sentencing the accused to death, but actually carrying out the sentences. Only China, Saudi Arabia, and Iran can compare with capital punishment actually carried out in recent years. Britain now subscribes to a European human rights resolution, whereby capital punishment may be used only in extreme cases during wartime. It is simplistic, of course, to say that Britain is a less violent country, where, in fact, the police don't even carry guns. However, as the same rainbow coalition of immigrants and a growing minority population in Britain has stirred up racial troubles, so one may see some harsher methods of convicting everyone from mere rabble rousers to those who incite riots, and cause damage to per5sons and property.

Limitations to Policy Transfer:

A first critique is that Policy Transfer is less a complete theory of policy change than a potentially useful heuristic device (James and Lodge, 2003; Radaelli, 2000; Evans and Davies, 1999); that it lacks a set of law-like generalizations on cross-national policy development (Evans, 2004:25); and that it is more as a means of identifying themes in the

wider literature that to project addresses rather than expecting the literature to provide firm guidance about how to frame the research questions or how to pursue them empirically (Page, 2000:12). As a result, the researcher that decides to use a policy transfer approach is probably better off either using policy transfer as a heuristic framework, which might provide a set of relevant questions for empirical analysis (Christensen et al., 2008; Common, 2001); or linking it to a broader theory of organizational, policy, or institutional change. A second critique is that the Policy Transfer literature is ambiguous regarding the temporal dimension (Page, 2000:5). Contributions to the literature would seem to care more about binary answers, that is whether transfer occurred or not (Common, 2001), or whether it was a failure or a success (see Dolowitz and Marsh, 2000). Thus attention is paid on relatively short-term processes, on what was transferred, but less on what happened after the lesson, institution, or policy was actually transferred into a new politicoadministrative environment. This photographic perspective somehow clashes against the whole point of talking about a process. As Westneys study shows (see also Lodge, 2003a; Jacoby, 2000; Thatcher, 2007), the transfer process can take a long time to unfold. As a consequence, knowing how the process influences or is influenced by its receiving environment may take a larger time-span. This has at least two relevant implications for transfer research: first, that the time variable needs to receive a clearer explicit consideration; and second, that the implementation side of the transfer process might require more, if not as much, attention as the decision-making/formulation side of the process. A third issue of the current Policy Transfer literature is related to how lessons and examples are obtained along the duration of the transfer process. Although the literature
Mauricio I. Dussauge Laguna, LSE From Lesson-Drawing to Bounded Transfer Paper to be presented at the 14th International Research Society for Public Management Conference Berne, Switzerland, April 7th, 2010 Draft only. Comments welcome. Please do not quote.

13 points at the possibility of drawing lessons from several sources (and also to the fact that transfer occurs in varying degrees, from photocopying to inspiration), the general tendency is to focus in a simplified exchange between one importer and one exporter (Pollitt, 2003). However, transfer processes might be more complex than that. At one level, because many actors might get involved in the process, an issue which has already been raised by several authors (Evans and Davies, 1999; Stone, 1999, 2000; Dolowitz and Marsh, 2000; Evans, 2004a, 2004b). At another level, because importing jurisdictions might start the transfer process taking one country as a model, but they may later decide to switch to another experience (e.g. Japan using the French army model first, but then the Prussian one; Westney, 1987).

A fourth issue that the literature faces is related to what could be called a rationalistic bias. This can be particularly found in the case of Roses pioneering work (which in its latest representation equals lesson-drawing with engineering; Rose, 2005:6). But it can be also found in Evans and Davies (1999) policy transfer framework, or the recent studies by Mossberger and Wolman (2002), and Wolman and Page (2002). One the one hand, it is clear that policy transfer and lesson-drawing are fundamentally concerned with the degree in which learning (lessons-drawn and prospective policy evaluation) exists throughout the transfer process. Actually, it might be suggested that another dimension of learning is currently missing in the framework (adaptive learning, see below). On the other hand, the empirical evidence from the studies discussed above also demonstrate that symbolic, anarchic, and sometimes casuistic factors are equally relevant for understanding why, how, and to what extent policy-makers engage in transfer, gather information, or choose specific programs or policy labels. This is certainly something that Dolowitz and Marsh (2000) have already tried to address in their framework. However, they unfortunately mix up three issues in one dimension (decision-making processes; rationales for engaging in transfer; and scope of autonomy of policymakers; see James and Lodge, 2003). Last but not least, an issue that runs through much of the literature on transfer is the minor role assigned to the broader political and institutional variables that are present along the process. Thus policy-transfer remains almost exclusively as a technical endeavour, in which the fungibility of the lessons, innovations, or policies is more important than its
Mauricio I. Dussauge Laguna, LSE From Lesson-Drawing to Bounded Transfer Paper to be presented at the 14th International Research Society for Public Management Conference Berne, Switzerland, April 7th, 2010 Draft only. Comments welcome. Please do not quote.

14 medium/long-term feasibility and development. The question is posed more in terms of how the policy transferred may affect the receiving environment, than in terms of how the institutional setting will affect the transfer process both before and after the specific policy, innovation, or program is transferred. Although some authors do consider that institutions are constraints to the policy transfer (Dolowitz and Marsh, 2000; Evans and Davies, 1999; Evans, 2004, 2006), they throw them in the same basket of other constraints together with policy complexity, language, or cognitive factors. However, as some authors have recently remarked, the institutional conditions that exist both before and after the actual transfer takes place are probably the most important variables bounding how the process unfolds (Jacoby,

2000; Lodge, 2003a, 2003b; Page, 2003; Bulmer et al., 2007). This is a matter to be further discussed in the following two sections.

However, the Policy Transfer approach has been criticised in various fronts. Authors have said, among other things, that it is less a theory than a heuristic device (James and Lodge, 2003; Radaelli, 2000; Evans and Davies, 1999); that it lacks a set of lawlike generalizations on cross-national policy development (Evans, 2004:25); and that it is ambiguous regarding the temporal dimension (Page, 2000:5). Similarly, it could be argued that much of the literature on Policy Transfer has assigned a minor role assigned to the broader political and institutional variables that are present along actual transfer processes. Building on these criticisms, this paper will suggest that the Policy Transfer approach might gain theoretical and analytical power by systematically using insights from the recent literature on historical institutionalism. While these two literatures deal with different topics and fields of inquiry, it will be argued here that both might be productively combined.

The proponents of policy transfer claim that there has been an increase in its occurrence. They state that the rapid growth in communications of all types since the Second World War has accelerated the process [of policy transfer] (Dolowitz and Marsh, 1996, p. 343). Whilst this statement could imply that the processes operating in cases of policy transfer occur more quickly now than before, Dolowitz and Marsh principally mean that there are more cases, arguing that While there is no denying that the process of policy transfer is not new, it nonetheless appears that over the past decade or so, as technological advances have made it easier and faster for policy-makers to communicate with each other, the occurrences of policy transfer have increased (Dolowitz and Marsh, 2000, p. 6). Their second, related, claim is that the significance of policy transfer in policy-making has increased. Dolowitz argues that, not surprisingly, the increase in the occurrence of policy transfer has led to an increased interest in the process. Certainly, as transfer is increasingly a feature of policy-making, it is important that the process be better understood (Dolowitz, 2000, p. 2). Similarly, Dolowitz and Marsh (2000, p. 5) state Given that policy-makers appear to be increasingly relying upon policy transfer, it is something that anyone interested in, or studying, public policy needs to consider. To evaluate the first claim of increased policy transfer over time, clear measures of transfer are needed to assess whether the amount of knowledge of other places utilised in policy-making has over time increased, decreased, remained the same or changed in some other way. Measures could then be used as part of a survey of policy transfer in a policy sector or for a jurisdiction

over a period of time. To evaluate the claim that policy transfer is of increased significance some measure of the relative importance of policy transfer compared to other processes in overall policy-making for a sector or jurisdiction over time is required. We suggest that distinctive measures cannot be derived from policy transfer because the breadth of the concept makes it difficult to disentangle from many other processes of policy-making. The difficulties of gathering evidence about policy transfer are compounded by Dolowitz and Marshs approach to selecting cases. They list a few cases of alleged policy transfer (Dolowitz, 2000, pp. 12; Dolowitz and Marsh, 2000, pp. 67). Dolowitz suggests that A few examples drawn almost at random [emphasis added] from the areas of public policy, political development and democratisation are illustrative (Dolowitz, 2000, p. 1). He notes examples from three fields of policy-making. In the field he terms public policy, Dolowitz gives the example of UK social security welfare policy where much of the Conservatives welfare-to-work program was transferred from the US; for political development he notes cases where as a condition for approving a loan, the International Monetary Fund often requires that a recipient country pursue particular economic policies; in democratisation he gives the case of the Spanish constitution, particularly the sections dealing with the roles of the prime minister, the legislature and the president was modelled on the German constitution (Dolowitz, 2000, pp. 12). But these examples do not seem to be drawn almost at random in the conventionally understood sense of selecting cases from a broader set using some form of probabilistic sampling technique. They are all positive instances where transfer is supposed to have happened at a particular time and do not constitute a convincing survey of policies in a sector or jurisdiction over time.

How we can improve Policy Transfer:

The previous sections have summarized the Policy Transfer literature. However, they have also remarked that Policy Transfer lacks adequate theoretical tools for explaining why policymakers engage in transfer and how the process unfolds across time. In trying to contribute to the second question, this section will seek to introduce a set of concepts from the new institutionalism debates, and specifically from its historical variants (Hall and Taylor, 1996; Pierson, 2004; Thelen, 1999, 2003; Mahoney and Thelen, 2010; Peters, 2005; Olsen, 2009). Although policy transfer could be discussed without necessarily using all the current technical terms surrounding institutions and institutional change/development (see Westney, 1987), here it will be argued that the explicit use of some of these concepts might add significant value for understanding how policy transfer takes place.

Conclusion

If there is one constant in the two systems of law is that they are evolutionary, rather than revolutionary; meaning that the sets of laws and judicial circumstances seldom make great changes overnight. Not even the infamous Roe v. Wade, among other U.S. Supreme Court decisions, has created anything but a guide to new directions (in this case the legality of abortions). As may be pointed out, in terms of the similarities of the two legal systems in question: "The blots we see upon the law are all made by human hands and by those hands they can be taken away." (Zane 1998 428) In other words, as people change, the law and its system may change- but, to paraphrase the Bible, the mills of the Gods grind slow, but they grind exceeding fine.

The concepts of lesson drawing and policy transfer are difficult to define distinctly from other forms of policy-making. Policy transfer is even broader in scope, encapsulating lessons, other forms of voluntary adoption and coercive processes. Policy transfer is very difficult to disentangle from other forms of policy-making and researchers will find it very difficult to form clear measures of practical use for assessing claims about changes in the importance of transfer. Focusing on certain elements of the policy transfer concept and developing clearer measures of transfer might be one way to develop the approach. Evans and Davies (1999, p. 382) have proposed that effort should be directed to validating whether transfer has occurred and assessing the extent of nontransfer. Bennett (1997, pp. 21415) develops an account of how to substantiate transfer by evaluating whether it can be demonstrated that idiosyncratic domestic factors are not independently responsible for policy adoption, that similar adoption is not the result of cross-national forces with separate effects in different states, that policy-makers are aware of policies in other areas and that evidence from elsewhere is utilised within the domestic policy debate. The Future Governance Programme Director has proposed narrowing transfer and learning perspective down on the transposition of policies and practices already in operation in one system to another, rather than ideas or knowledge (Page, 2000). A similar approach is adopted by James (2001) in exploring the extent to which the executive agency model of public service delivery, as developed in the UK, was emulated in different countries However, the use of policy transfer to explain policy change and policy success or failure does not adequately separate the policy success or failure being explained from processes of policy transfer. Instead, Dolowitz and Marsh redescribe aspects of failure as some form of transfer. At other points, they evoke explanations that go beyond features of the process of transfer to include the aims of policy-makers. Researchers may be better off using alternative theories focusing more directly on the effects of learning processes or styles of policy-making on policy outcomes.

The main argument made in this article is that both approaches would benefit from a more detailed consideration of what the idea of policy entails, as well as the process through which policy comes about. The authors explain that studies of the process of penal policy

formation would better explain how shifts in cultural and social routines are reflected in policy decisions.