Posts Tagged ‘prison organisation’

“These altered, lowered expectations manifest themselves in the development
of more cost-effective forms of custody and control and in new technologies
to identify and classify risk. Among them are low frills, no-service
custodial centers; various forms of electronic monitoring systems that impose
a form of custody without walls; and new statistical techniques for assessing
risk and predicting dangerousness. These new forms of control are not
anchored in aspirations to rehabilitate, reintegrate, retrain, provide employment,
or the like. They are justified in more blunt terms: variable detention
depending upon risk assessment.

Perhaps the clearest example of the new penology’s method is the theory of
incapacitation, which has become the predominant utilitarian model of punishment. Incapacitation promises to
reduce the effects of crime in society not by altering either offender or social
context, but by rearranging the distribution of offenders in society. If the
prison can do nothing else, incapacitation theory holds, it can detain offenders
for a time and thus delay their resumption of criminal activity. According
to the theory, if such delays are sustained for enough time and for enough
offenders, significant aggregate effects in crime can take place although individual
destinies are only marginally altered.

These aggregate effects can be further intensified, in some accounts, by a
strategy of selective incapacitation. This approach proposes a sentencing
scheme in which lengths of sentence depend not upon the nature of the criminal
offense or upon an assessment of the character of the offender, but upon
risk profiles. Its objectives are to identify high-risk offenders and to maintain
long-term control over them while investing in shorter terms and less intrusive
control over lower risk offenders. 

Selective incapacitation was first formally articulated as a coherent scheme
for punishing in a report by a research and development organization, but it was quickly embraced and self-consciously promoted as a
justification for punishment by a team of scholars from Harvard University,
who were keenly aware that it constituted a paradigm shift in the underlying
rationale for imposing the criminal sanction.

– Malcolm M. Feeley & Jonathan Simon, “The New Penology: Notes on the Emerging Strategy of Corrections and Its Implications.” 30 Criminology 449 (1992), pp. 457-458.

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“The new penology is neither about punishing nor about rehabilitating individuals.
It is about identifying and managing unruly groups. It is concerned
with the rationality not of individual behavior or even community organization,
but of managerial processes. Its goal is not to eliminate crime but to
make it tolerable through systemic coordination. 

One measure of the shift away from trying to normalize offenders and
toward trying to manage them is seen in the declining significance of recidivism.
Under the old penology, recidivism was a nearly universal criterion for
assessing successor failure of penal programs. Under the new penology,
recidivism rates continue to be important, but their significance has changed.
The word itself seems to be used less often precisely because it carries a normative
connotation that reintegrating offenders into the community is the
major objective. High rates of parolees being returned to prison once indicated
program failure; now they are offered as evidence of efficiency and effectiveness
of parole as a control apparatus.

It is possible that recidivism is dropping out of the vocabulary as an adjustment
to harsh realities and is a way of avoiding charges of institutional failure.
Nearly half of all prisoners released in eleven of the largest states during
1983 were reconvicted within three years. In
21 of the 48 states with adults on parole supervision in 1988, more than 30%
of those leaving parole were in jail or prison on new criminal or parole-revocation
charges; in 8 of them more than
half of those leaving parole were returned to confinement (including a spectacular
78% in California and 70% in Washington). However, in shifting
to emphasize the virtues of return as an indication of effective control, the
new penology reshapes one’s understanding of the functions of the penal
sanction. By emphasizing correctional programs in terms of aggregate control
and system management rather than individual success and failure, the
new penology lowers one’s expectations about the criminal sanction. These
redefined objectives are reinforced by the new discourses discussed above,

which take deviance as a given, mute aspirations for individual reformation,
and seek to classify, sort, and manage dangerous groups efficiently.

The waning of concern over recidivism reveals fundamental changes in the
very penal processes that recidivism once was used to evaluate. For example,
although parole and probation have long been justified as means of reintegrating
offenders into the community,
increasingly they are being perceived as cost-effective ways of imposing longterm
management on the dangerous. Instead of treating revocation of parole
and probation as a mechanism to short-circuit the supervision process when
the risks to public safety become unacceptable, the system now treats revocation
as a cost-effective way to police and sanction a chronically troublesome
population. In such an operation, recidivism is either irrelevant or, as suggested
above, is stood on its head and transformed into an indicator of success
in a new form of law enforcement.

The importance that recidivism once had in evaluating the performance of
corrections is now being taken up by measures of system functioning.
Heydebrand and Seron have noted a tendency in courts and other
social agencies toward decoupling performance evaluation from external
social objectives. Instead of social norms like the elimination of crime, reintegration
into the community, or public safety, institutions begin to measure
their own outputs as indicators of performance. Thus, courts may look at
docket flow. Similarly, parole agencies may shift evaluations of performance
to, say, the time elapsed between arrests and due process hearings. In much
the same way, many schools have come to focus on standardized test performance
rather than on reading or mathematics, and some have begun to see
teaching itself as the process of teaching students how to take such tests.

Such technocratic rationalization tends to insulate institutions from the
messy, hard-to-control demands of the social world. By limiting their exposure
to indicators that they can control, managers ensure that their problems
will have solutions. No doubt this tendency in the new penology is, in part, a
response to the acceleration of demands for rationality and accountability in
punishment coming from the courts and legislatures during the 1970s. It also reflects the lowered expectations for the penal system
that result from failures to accomplish more ambitious promises of the past.
Yet in the end, the inclination of the system to measure its success against its
own production processes helps lock the system into a mode of operation that

has only an attenuated connection with the social purposes of punishment. In
the long term it becomes more difficult to evaluate an institution critically if
there are no references to substantive social ends.

The new objectives also inevitably permeate through the courts into thinking
about rights. The new penology replaces consideration of fault with predictions
of dangerousness and safety management and, in so doing, modifies
traditional individual-oriented doctrines of criminal procedure. This shift is
illustrated in US. v. Salerno, which upheld the preventive detention provision
in the Bail Reform Act of 1984. Writing the opinion for the Court, then
Associate Supreme Court Justice William Rehnquist reasoned that preventive
detention does not trigger the same level of protection as other penal detentions
because it is intended to manage risks rather than punish. While the
distinction may have seemed disingenuous to some, it acknowledges the shift
in objectives we have emphasized and redefines rights accordingly.”

– Malcolm M. Feeley & Jonathan Simon, “The New Penology: Notes on the Emerging Strategy of Corrections and Its Implications.” 30 Criminology 449 (1992), pp. 455-457. 

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“A central feature of the new discourse is the replacement of a moral or
clinical description of the individual with an actuarial language of probabilistic
calculations and statistical distributions applied to populations. Although
social utility analysis or actuarial thinking is commonplace enough in modern
life-it frames policy considerations of all sorts-in recent years this mode of
thinking has gained ascendancy in legal discourse, a system of reasoning that
traditionally has employed the language of morality and been focused on individuals. For instance, this new mode of reasoning is found

increasingly in tort law, where traditional fault and negligence standards which
require a focus on the individual and are based upon notions of individual
responsibility – have given way to strict liability and no-fault. These
new doctrines rest upon actuarial ways of thinking about how to “manage”
accidents and public safety. They employ the language of social utility and
management, not individual responsibility. It is
also found in some branches of antidiscrimination law, wherein the courts are
less interested in intent (i.e., discrimination based on identifying individuals
whose intentions can be examined) than in effects (i.e., aggregate consequences
or patterns that can be assessed against a standard of social utility.

Although crime policy, criminal procedure, and criminal sanctioning have
been influenced by such social utility analysis, there is no body of commentary
on the criminal law that is equivalent to the body of social utility analysis
for tort law doctrine. 9 Nor has strict liability in the criminal law achieved
anything like the acceptance of related no-fault principles in tort law. Perhaps
because the criminal law is so firmly rooted in a focus on the individual,
these developments have come late to criminal law and penology.

Scholars of both European and North American penal strategies have
noted the recent and rising trend of the penal system to target categories and
subpopulations rather than individuals. This reflects, at least in part, the fact that actuarial
forms of representation promote quantification as a way of visualizing

Crime statistics have been a part of the discourse of the state for over 200
years, but the advance of statistical methods permits the formulation of concepts
and strategies that allow direct relations between penal strategy and the
population. Earlier generations used statistics to map the responses of normatively
defined groups to punishment; today one talks of “high-rate offenders,”
“career criminals,” and other categories defined by the distribution

itself. Rather than simply extending the capacity of the system to rehabilitate
or control crime, actuarial classification has come increasingly to define the
correctional enterprise itself. 

The importance of actuarial language in the system will come as no surprise
to anyone who has spent time observing it. Its significance, however, is
often lost in the more spectacular shift in emphasis from rehabilitation to
crime control. No doubt, a new and more punitive attitude toward the
proper role of punishment has emerged in recent years, and it is manifest in a
shift in the language of statutes, internal procedures, and academic scholarship.
Yet looking across the past several decades, it appears that the pendulum-like
swings of penal attitude moved independently of the actuarial
language that has steadily crept into the discourse. 

The discourse of the new penology is not simply one of greater quantification;
it is also characterized by an emphasis on the systemic and on formal
rationality. While the history of systems theory and operations research has
yet to be written, their progression from business administration to the military
and, in the 1960s, to domestic public policy must be counted as among
the most significant of current intellectual trends. In criminal justice the
great reports of the late 1960s, like The Challenge of Crime in a Free Society, helped make the phrase “criminal justice system” a part of
everyday reality for the operatives and students of criminal law and policy. 

Some of the most astute observers identified this change near the outset and
understood that it was distinct from the concurrent rightward shift in penal
thinking. Jacobs (1977) noted the rise at Stateville Penitentiary of what he
called a “managerial” perspective during the mid-1970s. The regime of Warden
Brierton was characterized, according to Jacobs, by a focus on tighter
administrative control through the gathering and distribution of statistical
information about the functioning of the prison. Throughout the 1980s this
perspective grew considerably within the correctional system. Jacobs
presciently noted that the managerial perspective might succeed where traditional
and reform administrations had failed because it was capable of handling
the greatly increased demands for rationality and accountability coming
from the courts and the political system.”


Malcolm M. Feeley & Jonathan Simon, “The New Penology: Notes on the Emerging
Strategy of Corrections and Its Implications.”

30 Criminology 449
(1992), pp. 453-454.   

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