Posts Tagged ‘social utility’

“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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