In a broad sense the identification, classification and regulation of risk is very much a modern pre occupation that permeates many different areas of our daily lives. From terrorism to natural disasters, risk and how it might best be managed is a theme that is pervasive in modern life (Donoghue, 2008, p. 338). As Beck (1992, p. 174) highlighted modern society, by virtue of its inherent uncertainties and resulting insecurities, has become increasingly concerned with risk and its management. For criminologists this is an important factor in the understanding and explanation of current developments in crime control and penal policy (Kemshall & Maguire, 2001, p. 243).
Feeley and Simon (1992, p. 450) argue that there has been a radical shift to a new penology, with the emergence of new discourses and the deployment of new techniques, the disciplinary focus has shifted from one based on individual behaviour and the possibility of change, towards the management of risk. This essay is going to critically examine the suggestion that punishment today is as much about risk management as it is about reducing offending, in order to do this, this essay will first critically examine the development of risk management. It will then move on to critically examine actuarial justice, a term first used by Feeley and Simon (1992, 1994), a method of predicting behaviour and situating offenders according to the risk they pose.
The end of the twentieth century saw increasing lack of faith in the modernist penal agenda and a crisis in penal modernism. The modernist penal agenda can be categorised by its penal welfare techniques and as Garland (1995, p. 192) highlights it saw a shift from individualism to individualisation. The focus of modernist penal agenda being to assess and classify offenders, using ‘psy’ disciplines for reforming techniques aimed at the normalisation of the offender and reducing re-offending. Kemshall (2003 P. 16) explains that this was essentially a period that saw the replacement of prohibition and penality with corrective treatments towards pre specified normative requirements. Modern penality presumed that a normal individual could be trusted not to reoffend due to the state induced self-control that was carried out through the work of various institutions of the social realm, i.e. education and welfare agencies.
However, this modernist agenda came under criticism not least because of the failure of such techniques to reduce re-offending, as Garland (Garland, 1995, p. 193) points out there is wide acknowledgement of fundamental failures within modernist criminal justice to change offender and reduce re-offending. The debate about how to protect the public from the risks offenders pose was sparked off in earnest (Kemshall & Maguire, 2001, p. 239) back in the 1970s by a highly publicised murder case. The case involved a diagnosed psychopath called Graham Young who had been committed to a Special Hospital after poisoning members of his family; he was later released without any effective supervision or management and committed further murders by a similar means. The eventual outcome of this case was a variety of proposals for sentencing reforms and a demand for improved risk management of dangerous offenders (Kemshall & Maguire, 2001, p. 239). During the 1980s concerns continued to grow about dangerous offenders being released from prison and how they are managed in the community, a kaleidoscope of other factors ranging from theoretical objections, to the then increasing crime rates and a lack of faith in penal experts, in particular the capability to change offenders and reduce reoffending has seen a demise of the modernist ideal of normalising offenders (Cheliotis, 2006, p. 315).
In the wake of this ‘nothing works’ ideology and the associated failures of the expert system central to penal modernism the notion of crime as risk has emerged in criminological theory to describe a collective adjustment in our perception of crime. This notion of crime as risk implies rejection of or at least modification of modern penailty’s quest to eliminate crime by normalising the offender in favour of more modest managerial objectives (Robinson, 2002, p. 7). Hannah-Moffat (2005, p. 30) agrees with this view and argues that welfare strategies within punishment are being displaced by risk management and its associated actuarial strategies, shifting the focus away from individual rehabilitative models. Feeley and Simon, (1992, p. 452) claim that this new penology does not seek to change the offender through targeted interventions to reduce re-offending rather it is concerned with effectively identifying and managing an offender at risk of re-offending, while minimising the potential risk to the community.
Simon (1998, p. 772) argues that in response, organisations involved in crime control are now turning their resources to predicting behaviour and situating offenders according to the risk they pose. This goes beyond mere assessment of risk according to Cheliotis (2006, p. 317), risk is intrinsically bound up with the notion of actuarial justice, a term first introduced by Feeley and Simon (1992, 1994) who claim that its roots are now established firmly enough to have created a new penology. Actuarial justice (Feeley ; Simon, 1992, p. 453) embodies an intelligible systematic discourse concerning the prediction of crime through risk assessment involving logical, coherent, robust, and often mathematical calculation of behavioural probabilities, which are then used to inform criminal justice policies and judicial decision making. Techniques of actuarial justice create populations of risk; offenders do not choose to belong to these populations and may not be aware that they do belong. Risk populations may be low or high and it is this categorisation that will determine the level of policing, surveillance and security, risk management, individuals within the group receive (Feeley ; Simon, 1992, p. 455).
This approach is disinterested in the traditional concerns for the individual offender in respect of culpability and criminal character, rather it accepts the motion that crime is inevitable, a natural part of society, it accepts that deviance is normal (Feeley and Simon 1994 p 173). A view shared by Garland (1995, p. 446) who argues that for most people crime in no longer an unexpected event, instead the threat of crime has become a routine part of modern consciousness, an everyday risk that needs to be assessed and managed. Its aim therefore, as Feeley and Simon (1994, p. 174) propose, is not one of transformation, rather management as it seeks to regulate groups as part of a strategy of managing risk. This strategic and risk based approach includes risk calculations and risk probability assessments replacing clinical diagnosis and rehabilitation and a systemic approach to justice. An increased emphasis upon managing offenders in place rather than securing rehabilitation, and the pursuit of new crime control techniques such as targeting offenders, managing offenders as aggregate groups, situational crime risk management, and increased surveillance of at risk groups such as sex offenders (Kemshall, 2003, p. 20).
For Feeley and Simon (1994, p. 175) actuarial justice practices have unobtrusively permeated a number of criminal justice practices because they are a more effective means of control than practices and techniques that aim to change the offender on order to reduce re-offending, furthermore they claim that actuarial justice techniques and practices are less likely to generate resistance. O’Malley (2004, p. 328) disputes this claim however suggesting that actuarial justice practices have grown not because they are more effective but because of their appropriateness to a particular ends, and this in large measure will be related to political struggles which establish programs on the social agenda. In this respect Garland (1995, p. 194) argues that wider issues relating to social stratification and in particular the status and value of rehabilitation are being minimsed in a system that emphasises effective controls that minimises cost and maximises security. Garland (1995, p. 194) argues that the rise of actuarial justice can be attributed to governmental aims of reducing the cost of crime. The promise to deliver ‘law and order’ and security for all citizens in now increasingly replaced by a promise to process complaints or apply punishments in a just, efficient, and cost effective way. Actuarial justice according to Garland (1995, p. 195) is an example of economically rationalist philosophies being introduced in the practice of crime control.
There seems little doubt that punishment today is as much about risk management as it is about reducing re-offending and perhaps this is merely an evolution in policy that reflects an evolution in society. As Durkheim (1964 cited by Cheliotis, 2006, p. 314) argued societal interventions and particularly penal responses serve to reinstate social cohesion by healing the wounds done to collective sentiment. Shared social understandings, emotion and fears are inextricably linked to penal policy making (Durkheim 1964 cited by Cheliotis, 2006, p. 314), when social concerns and fears about the risks offenders pose began to rise back in the 1970s and continued to rise through the following decades, and the shared social understanding called for better management of those risks, penal policy inevitably began to reflect those societal attitudes (Kemshall & Maguire 2001 p 239).
It would seem, argues McNeil (2009, p. 22), that the contemporary preoccupation with risk, and sometimes the obsession with finding someone to blame when risk materialises, may suggest that political position can be secured by promising to manage and reduce risks as well as reduce re-offending. McNeil (2009, p. 22) maintains that at times when offenders are becoming increasingly vilified, particularly in the media, risk management is a ‘safer pitch’ for penal policies and government in general than the more traditional approach of changing the offender to reduce re-offending. (Douglas, 1994, p. 296) comments that this produces a paradox, when we promise to protect and manage the risk, we confirm the existence of a risk, essentially legitimising and reinforcing the fears of society. Similarly according to Robinson (2002, p. 24), criminal justice agencies have committed themselves to the assessment and management of risks and this has exposed them not to the likelihood of failure but the inevitability of failure. Not all risks are predictable and not all harms are preventable, no matter how effective risk management is it will not protect from the occasional spectacular failure and the inevitable criticism and blame the criminal justice agencies will face because of that failure.
With punishment today becoming as much about risk management as it is about reducing re-offending the employment of actuarial techniques have increased. Pratt (1998 cited by O’Malley, 2004, p. 327) argues that employing actuarial techniques, which are mathematical, statistical and objective, and through the classification of offenders and prediction of risk, the need for human discretion becomes obsolete, this in turn offers a new scientific expertise that is far more efficient and have come to be viewed favourably in criminal justice systems.. As a method of implementing policy, actuarial techniques of risk management, that is mathematically constructed prediction instruments, have been adopted to help overcome past problems of racism, sexism and other biases associated with discretionary decision making. (Kempf Leonard ; Peterson, 2000, p. 68). However, as Kempf Leonard and Peterson (2000, p. 68) identify standardised prediction instruments carry their own problems. Firstly, they tend to neglect the motivation of the offender instead; the offender is defined primarily in terms of their purely negative risk status. Secondly, extra legal factors deemed inappropriate can become institutionalised. Thirdly, offenders with dissimilar cases are now receiving similar outcomes.
More significantly perhaps, Kempf Leonard and Peterson (2000, p. 68) argue that these actuarial instruments are beginning to take on a life of their own. This view is shared by Garland (1995, p. 202) who highlights that the effectiveness of these methods are measured on outputs rather than outcomes. It is what the criminal justice agencies do that is measured rather than what it achieves. Garland (1996, p. 202) argues that actuarial techniques are not merely vehicles for more effective implementation of punishment and policy in fact they are becoming the actual objective of punishment and penal policy.
One major issue surrounding the suggestion that punishment today is as much about risk management as it is about reducing re-offending is the concern that those who are already disadvantaged will suffer more (Douglas, 1994, p. 197). Within the realms of risk management Douglas (1994, p. 198) argues that it is clear that population management is not directed towards white collar criminals or the policing of managing directors. Actuarial justice and risk management is a way of legitimately recognising the poor communities as a group who are a risk to order and safety. Douglas (1994, p. 198) claims that research indicates risk populations largely share both poverty and postcode. Although in the past poorer communities may still have been recognised as a risk to order and safety, and their residents were known to be bad Douglas (1994, p. 198) argues it is different from today.
In the past, poorer communities and their residents were known as bad through word of mouth and reputation. This means that there was scope to recognise that although they were all poor they were not all potentially criminal. This cannot be said to be the case today however, with the advent of risk management, actuarial techniques of categorisation, and more modern forms of surveillance these groups or populations are targeted with different crime control practices to other members of society, and for example, they may experience heavier policing and greater surveillance. Furthermore, these measures target all members of the community and not just a select group (Douglas, 1994, p. 200).
The suggestion that punishment today is as much about risk management as it is about reducing reoffending appears to be unquestionable. As Feeley and Simon (1994 p174) argue risk management is inextricably linked to actuarial justice and that actuarial justice has permeated criminal justice and penal policy resulting in a shift from an old penology to a new penology. Transformative and rehabilitative rationales have been challenged by an actuarialist discourse of calculating risk and the statistical probability of re-offending. Turning the offender from a cause to be dealt with into a characterless statistic to be managed, the goal not to eliminate crime but to make it tolerable through systemic coordination (Hannah Moffat, 2005, p. 46).
Whilst Feeley and Simon (1994, p. 176) argue that risk management and actuarial techniques are a more efficient and cost effective method of crime control O’Malley (2004, p. 328) maintains that risk management and practices of actuarial justice are popular because they are chosen specifically by political parties to achieve specific political goals. Kemshall and Maguire (2001, p. 239) highlights that since the 1970s concern about the risks offenders pose to the public has been growing, Durkheim (1964 cited by Cheliotis, 2006, p. 314) may suggest that risk management serves to reassure a society, who have a shared concern about the risks offenders pose, that their fears are being addressed. However as Douglas (1994, p. 296) points out this is just giving legitimacy to societal fears, which after all may not be entirely accurate.
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