Seminar 4 Notes PDF

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Punishment, Risk and Fear 

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Characteristics of the new penology – a language of probability and risk, a focus on efficient control of internal systems and new techniques targeting groups or classes of offenders. Criminal justice seeks to sort and classify and then separate the less from the more dangerous and to deploy control strategies rationally. Foucault also focused on the increasingly internal, secret and autonomous control of the prison like Feeley and Simon. Focuses on the description of the criminal justice process as an increasingly rationalised discipline, managed within a strict hierarchy. A way of identifying, controlling and managing risky populations in the most efficient ways possible.

Managing the Monstrous: Sex Offenders and the New Penology – Jonathan Simon - Sex offenders are seen as some of the most evil of offenders. Laws aimed at addressing them are evidential of the new penology as they are considered high risk offenders and therefore subject to more punitive sentences. - New Penology is marked by changes in the targets, strategies and discourses of the penal establishment than by purposes in a formal sense. o Abandonment of individualisation in punishment. o Priority given to the language of risk in the administration of justice – role of reoffending has changed; used to be purpose of punishment and now it seems it is the reason for punishment. o Offenders are seen as subjects to be managed – no longer rehabilitative/reformative ideals that once were so prevalent. Become a managerial task. o Predominant view that nothing can be done to change offenders – no point trying to change them, simply want to control them and delay further offences.  Pessimism comes from development of underclass and their existence being seen as useless and change in social perspectives. o Operational parameters of the penal system are being used as evaluative guidelines rather than norms of the relevant communities. Role of community is diminishing and has been replaced with technocratic knowledge such as drug testing and administrative compliance. - Public want to focus on more harsh punishment – populist punitiveness. More likely to want to enact vengeance and retribution. Obsessed with the most dangerous of offenders. - More severe punishments being enacted in theory on the most risky offenders, but this isn’t the case for low and medium risk offenders who are having more moderate sanctions in order to save resources. - High overall rates of recidivism have helped reduce the appeal of deterrence arguments. - Prison is useful for incapacitating – fits with new penology as rehabilitation is not the purpose.

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Recent sex offender laws provide a compelling picture of how the new penology and populist punitiveness are being merged in the creation of public policy, along with appeal to populist punitiveness. o Increased managerialism o Populist sentiments – harsh punishments o Agnostic towards treatment – populist punitiveness hostile to this and system wants to save resources o Sex offenders have become modern-day monsters Kansas v Hendricks: US Case – Upheld very punitive law regarding sexual offenders. Different from other offenders and worthy of the punishment as they are high risk offenders. o Relevant act specifically targets a subpopulation rather than a type of behaviour or form of individual abnormality. o Act defines its goals as management rather than transformation – due to high risk to society explicitly stated. o Outlines role of sexual offenders as the new monsters that pose a substantial risk to the public. Considered outside treatable persons – no point; have a mental abnormality rather than a mental illness. o The law has emphasises the importance of populist fears and demands for punishment in its management of sex offenders. o These laws came from the case of Megan Kanka – young girl who was a brutal victim of a sexual offence.  Aims to empower citizens with the information to protect them against offenders known to the state. Eliminates the role of the state agent and the state responsibility. Reflects imperatives of new technology and populist punitiveness.  Lots of emphasis on risk of sex offenders.  Has a subpopulation as a target – based on statistics about reoffending rather than individual characteristics; reflects the priority given to risk by the new penology. This has replaced psychological and psychiatric expertise that are associated with the old penology.  Reflects the fact that sex offenders cannot be changed and it is pointless to try. Try and keep them in prison long term to manage their danger to society.  Old penology indicated the state’s belief that they could reform and change people; the new penology shows scepticism about the power of the state to fundamentally change offenders.  Very technocratic forms of knowledge – distance between individual and state.  Key criteria when deciding application of the law is whether the offender has committed any prior offences.  Protects state from the responsibility for failure – popular with citizens. Populist aspect. However, there are concerns among the judiciary for a populist approach.  Confinement of the most dangerous is a civil necessity? A new generation of sex offender laws has changed the framework – change in targets, efforts, expertise, use of power an communication.

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Sex offenders are seen as the worst of society. US Supreme Court cases have affirmed the legitimacy of this transformation – masked constitutional standards; increased use of coercive powers.

The New Penology – Feeley and Simon - New Penology marks a shift away from traditional concerns for the individual and redirects the concern to a consideration of aggregates (wider group). This develops increased reliance on imprisonment as well as concerns for safety of wider community rather than the punishment of individuals. - Penal ideology became more conservative in the 1970s and 1980s – this is due to a deeper change in conception resulting in the new penology. o New discourse – increase talk of probability and risk rather than retribution o New objectives – newly systematic; want effective internal control rather than rehabilitation and crime control o New techniques – target offenders in a wider context rather than individualising them - This is most obviously demonstrated by the huge increase in the prison population which hasn’t been matched with an increase in crime. Conventional understanding that this is due to changes in the demographic, social changes and increased efficiency are not enough to explain this. - This approach contrasts with the tough on crime political rhetoric. - New Penology has helped fill the gap between the lock them up attitude and resource allocations as it competes with crime control. - Old Penology concentrates on the individuals and aims to assign guilt. - New Penology is less focused on responsibility, guilt, fault etc. Rather it aims to class and manage groups sorted by dangerousness, and to manage this groups rather than transform them. Seeks to regulate deviance. Pursues systematic rationality and efficiency. Individualised diagnosis and response is displaced by aggregate classification systems for purposes of surveillance, confinement and control. - New Penology is a conceptual integration – a strategic formation of knowledge and power offers managers of the system a way to deal with offenders. - Moral description of the individual has been replaced with an actuarial, scientific approach. This is more like the approach in delict – in which there are standards and individual responsibility. Employ language of social utility rather than individual responsibility. More like a strict-liability approach; they don’t really care apart from this. - Trend to target categories and subpopulations rather than individuals – this is the way people are visualising populations. Actuarial classification based on the type of offender has defined the criminal justice system and types of punishment. - More focus on crime control than rehabilitation. Also a more punitive attitude towards the proper role of punishment. This has been separate to more actuarial language. - Focus on tighter administrative control through the gathering and distribution of statistical information about the functioning of the prison. - The new penology is neither about punishment nor about rehabilitating – it is about identifying and managing unruly groups of society. It is a managerial process to coordinate those that commit crime. This is shown by declining significance of

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recidivism. The new focus of recidivism is reintegrating offenders – when it fails this is offered as evidence of the efficiency of control mechanisms. Harsher reality. High rates of reoffending – the new penology uses this to indicate the success of the control mechanisms of the criminal justice system. Makes it a system of control and management rather than one of individual reform – lowering the expectation of the system. Parole has become a long term method of controlling those that pose the highest criminal risk. Tendency to decouple performance evaluation from external social objectives. Can also be seen in schools – focus on standardised test performance rather than individual scores, learn how to pass the test rather than learn and grow. Institutions have therefore limited their indicators to what they can control – focus on rationality and accountability rather than social factors. In the long term it becomes more difficult to evaluate an institution critically if there are no references to substantive social ends. The new penology replaces considerations of fault with predictions of dangerousness and safety management. o US v Salerno: Upheld the preventive detention provision as it does not trigger the same level of protection as other penal detentions because it is intended to manage risks rather than punish – acknowledges shift!! This has resulted in more cost-effective forms of punishment and better ways of classifying risk. E.g. custodial centres, electronic monitoring, statistical techniques etc. They are not trying to rehabilitate or reintegrate but to detain based on a proportional risk. o This has resulted in imprisonment becoming so predominant – it reduces the effects of crime by rearranging the distribution of offenders in society. Even if it can do nothing else, it can delay prisoners causing further crime.  Can it though – prisoners commit crimes in prisons, some prisoners say they can commit more crime – e.g. cheaper drugs etc. o If crime is delayed for so long, significant aggregate effects in crime can take place despite individual destinies only having minor alterations. o Increasing aggregate effects can be done by selective incapacitation – imprisonment doesn’t depend on offender or their offence but on their risk profiles – this approach represents a paradigm shift in the underlying rationale for imposing the criminal sanction.  Serious issues for fairness and equality (Art 6 ECHR), what if they get it wrong, consolidation of racism/sexism/discrimination (Art 14 ECHR) New custodial continuum – sorts individuals into groups according to the degree of control warranted by their risk profiles. Spectrum of supervisory options determined by management of that offender concerns. o Shift the target from individuals, who do not easily fit into centralised administration, to categories or classes who do. Therefore we focus on organising these groups rather than having concern for the individuals who make up the group. The new penology is an interpretive net that can help reveal the way future changes might happen.

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The Expansion of the Penal Sanction: More people face punishment and this is expensive and therefore it is a problem. Want to look for other alternatives that may work; e.g. parole/supervision etc. o Increase of people going from lesser supervisory punishments into incarceration. o Prison increasingly used for short term offenders as a holding place where they are considered too dangerous. o Prison has become a warehouse for the highest risk classes of offenders – all just grouped together, no real specialisation within the prison for different types of offenders. o Community corrections have grown as a support for the prison – but not as a rehabilitative approach; as a way of managing risk and cost effectiveness. o This approach does not promote equal justice for offenders – based on rough aggregations and statistical averages that are blind to the differences and individualisation of each offender. Looks at collections of cases and general social harm rather than a circumstantial approach. The Rise of Drug Testing: Drugs are a central concern for the penal system – very tough laws on drug use/supply. High proportions of offenders are drug users and high proportion of drug offenders sent to prison. o Drug treatment is the hallmark of the rehabilitative programme in the 1950/60s. o Concern for drugs now is based on social attitudes towards drugs – take a much more hard-line approach compared to the relevant tolerance of the 1970s. This is probably due to the increased strength of drugs and the social impacts that we can see, particularly on the urban poor. o Drug use has been used as a risk indicator. o However, drug use on offenders is so common that it isn’t a very good measure of individual deviance – it has become a mechanism for placing the offender in the particular risk group.  Become an unjustified justification. o More emphasis on drug testing than treatment. Testing allows for perceived better allocation of penal resources. o Testing fills gap left by the declining treatment. It is something to do for penal actors that allowed internal performance to be measured. o Testing provides an occasion for the parolee to show up and a purpose for the parole meeting. Increases accountability but doesn’t substantially distinguish between offenders. Innovation within the Criminal Process o Focus on managerial rather than integration can be hard to reconcile with the new and innovative technologies such as electronic tagging, house arrest, probation, boot camps etc. o However, reforms evolve in different ways to the aims that are set out usually. Many of the new innovations are compatible with the imperatives of the new penology – managing a permanently dangerous population while maintaining the system at a minimum cost. o Many of these new innovations lack a foundation in today’s social and economic realities. Unlikely to be that effective. Rather they just serve the

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imperative of reducing the costs of correctional jurisdiction while maintaining some check on the offender population. o Despite lingering talks of rehabilitation and reintegration, the programs generated under the new penology can be best understood in terms of managing costs and controlling dangerous populations rather than social or personal transformation. The new penology has an affinity with a new actuarial criminology which rejects previous concerns of criminology (causes and correlates of criminality and how to decrease further delinquency). Instead the approach is based on research and analysis of risk and management of aggregates. o This has caused a reconceptualization of the way that crime is considered as a social problem. o Highlights the interaction of criminal justice institutions and specific segments of the population. o Emphasis on the management of high-risk groups rather than individuals and their communities. o This is shown by use of predictive statistics. o Criminology has become a generalised public policy discourse rather than there being a focus on the prisoners. System aims at rationalising management rather than dealing with actual offences. Becomes as mundane as supply chain management etc. New Penology might be a response to the new understanding of poverty – the underclass; those that lack social mobility and economic integration. o Mainly black/minority groups in urban areas that are separated from mainstream life. o All about them being a marginal population – without employable skills which self-perpetuates due to their isolation from the rest of society. o The underclass has become a dangerous class – they are at high risk of collective misbehaviour and therefore are treated as needing management. Allan (1981): Rehabilitative and reintegrative ideals are only relevant where there is a social norm for individuals to be evaluated against – the decline in these ideals is evidence of the decreasing capacity to impose these norms on to others and the declining desire to. New Penology of the 1980s reflects the influence of a more despairing view of poverty and the actual prospects of reaching equality because the most at risk groups (marginalised societies) do not share a common narrative with the majority. Therefore the old reformative ideals are inappropriate for the desires and realisms of the society and therefore there has been a shift to the low-cost management of a permanent offender population instead. Irwin, ‘The Jail’: The function of jail is to manage the underclass. Jail is a means of controlling the disruptive and as a net for those who don’t fit into society as other social services don’t catch them first. Jail is a social management instrument rather than an institution for effecting the purported aims of the criminal process. Criminal justice has become a waste management function – this is likely to cause uproar in the future as it defies the democratic civil order.

Punishment and Risk – Hannah-Moffat - Governments are having to come up with new strategies to deal with rising crime and social and political demands for control. Increased use of risk management. This can be seen in other social policy areas more generally. o Increased use of risk predictions and risk management. o Crime being seen as a calculable, avoidable and governable risk. o Offenders are being classified by their risk and some are seen as requiring further control due to their social characteristics – punitive penal populism. - This marks the ‘collapse of the grand narrative’ – Garland. We are realising that we can’t fix/reform offenders. - Risk managing these offenders is the central feature of neoliberalism. Offenders seen as rational who should be responsible for themselves. - Risk as a way of classifying offenders has developed as a result of advancements in technology and knowledge which has allowed increased accuracy in concluding risk levels. - Feeley and Simon: Modern penal policies were shifting away from individualised rehabilitative models toward more strategic, administrative population management approaches that relied on actuarial techniques in assessing risks. No focus on changing the offender but minimise the risk to the community. This was emphasised by a new type of discourse, shift in focus from rehabilitation and crime control to efficient control and the de-individualisation of the process and grouping together of offenders based on social characteristics. - Offenders seen as risks to be managed rather than solved. Risk instruments being used to assess risk and implement a more standardised punishment based on the prevalence of certain factors. This is having an impact on sentencing. - Lack of consensus about how risk should be used to inform the criminal justice process across different jurisdictions. - Need to find ways to reduce incarceration o Increased focus on incapacitation has massively increased economic burden on state. - Risk-use rising can be a response to the nothing works philosophy. - Increased focus on evidential-based practices for sentencing; how to manage the population in general. Characterised as more neutral than individualised approached. Don’t want a too welfarist approach. o Increased objectivity and evidential/empirical based decisions o Help to improve efficiency and make better use of resources. o Risk score used to define what is the best sentence. o Argued that it appears objective ...