Exceptionalism for most, excess for others: The legal foundation of a bifurcated criminal justice system in Denmark

Abstract

Following a change in the Danish gang milieu in 2008, where ethnic minority street gangs challenged the established outlaw motorcycle gangs, the Danish government has formulated three anti-gang policy ‘packages’. To unfold the development they represent to Nordic penology, this article analyses elements of both penal exceptionalism and excess. In this article, it is shown how the packages are based on the notion of gang membership as a choice, which legitimated the development of a parallel justice system for gang members. This foundation is built upon a gang-specific subsection that allows for the doubling of gang-related sentences and for restricting prisoner rights and traditional rehabilitative treatment for gang-related convicts. The packages, however, maintained ‘a way out’ for gang members who voluntarily entered a formal EXIT program, and thus gained access to traditional penal treatment and also support for leaving the gang milieu. It is argued that the packages represent a development of intended bifurcation based on status differentiation between citizen groups, a process also observed in regard to Danish anti-ghetto policies. Thus, rather than resembling a general turn to punitiveness, the packages indicate a penological development based on penal differentiation, which raises questions about access to justice for those found wanting.