Posts Tagged ‘the new penology’

“In keeping with these developments, probationers have been subject  to a growing range of penal controls. During the 1950s, probation involved the offender occasionally meeting with, and reporting to, his or her probation officer, and being bound by the general conditions of probation orders, as well as, no doubt, being subject to a variety of informal local controls. Today, however, many probationers, in addition to the purview and surveillance of a probation officer, and through the more specific and specialized community-correctional conditions of probation orders, encounter members of the Salvation Army and John Howard and Elizabeth Fry societies, as well as the numerous church, business, native, and other community groups and volunteers charged with penal processing. It is difficult to conceive that the growth of the Ministry of Correctional Services’ community satellites has not entailed the evolution of increasingly pervasive models of penal control.
Ominous tendencies are…evident in the case of community service orders. They, too, increase the range and intensity of formal conditions of probation. Yet the program has ideological appeal across the political spectrum. Within corrections, it enjoys the support of judges, correctional officials, and numerous private-sector groups who have become involved in the provision of community-service-order programs in Ontario. Much of the appeal of community service orders derives from their perceived reparative effects. But, as Axon has observed in her study of community service orders in Canada, what Community [Service] is, in fact, is unpaid work done by the offender in the community. Whether or not this unpaid labour constitutes reparation is another matter entirely.’

The appeal of community service orders – as with community corrections more generally – also derives from their emphasis on community. As Stanley Cohen has observed, the word ‘community’ is not only ‘rich in symbolic power, but it lacks any negative connotations.’ Different, competing, and even contradictory assumptions can be brought together under the ambiguous concept of community. Leaving aside the problematic issue of how ‘community’ should be define, the extent to which offenders are members of the community that benefits from their own unpaid labour is doubtful. Studies of community service orders in Ontario, and in Canada more generally, suggest that those subject to the program are often young, unemployed males, who are first-time offenders, do not belong to clubs or organizations, and have had ‘poor education with few prospects of obtaining anything but ‘dead end’ jobs” (Axon). What would be the benefit to these offenders, it seems, are better opportunities to become members of the community’s paid labour force, rather than being subjected to forced labour.

At the same time, one segment of the wider community has clearly benefited from, and been remunerated through, community service orders: private-sector groups have derived financial as well as ideological benefits from the development of programs. They pressured the Ministry of Correctional Services to develop community-service-order programs and to make contracts with them for operating the programs. Following from this, community service orders have more to provide jobs for those affiliated with the John Howard Society, the Elizabeth Fry Society, the Salvation Army, and other groups, than for offenders. In the process, the incomes of these groups increased. They and their quasi-civil service staff benefited from the perception that community service orders ‘helped humanize the correctional system while providing them with worthwhile jobs (Menzies). In a variety of ways, and similarly to the situation of community-service-order programs elsewhere, ‘in reality, the service which the offender gives is not to an abstract ‘community’ but rather to those agencies and individuals who are willing to be involved with offenders’. (Axon) Overall, community service orders strengthen the net of penal control not only by formally extending probation conditions, but also in expanding the range of non-state agencies becoming involved in – an financially dependent on – the exercise of control.”

– Maeve W. McMahon, The Persistent Prison? Rethinking Decarceration and Penal Reform. Toronto: University of Toronto Press, 1992. pp. 120-122.

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“Every day at about 5pm, 60-year-old Willard Birts has to find a power outlet. Then he has to wait two hours next to it while the battery on his ankle monitor recharges. If he lets the battery drain, or enters San Mateo county, he risks being sent back to jail while he awaits trial.

Birts pays $30 per day – that’s $840 per month – for the privilege of wearing the bulky device. It sucks up all his income, leaving him homeless and sleeping in his Ford Escape in Oakland.

“It’s like a rope around my neck,” he told the Guardian, a cable snaking across the floor from his ankle to the wall. “I can’t get my feet back on the ground.”

The use of GPS ankle monitors in the American criminal justice system is on the rise – up 140% between 2005 and 2015, says the latest data available. The government uses these devices to track the location of individuals to make sure they are complying with the terms of their release, whether that’s being at home every night after a certain time or avoiding specific places. They appear to offer a tantalising alternative to jail and the chance to be with family on the outside.

It pretends to be an alternative but it’s actually a form of incarceration

But wearers described them as digital shackles that deprive them of their liberties in cruel and unexpected ways.

“It pretends to be an alternative to incarceration but it’s actually a form of incarceration,” said James Kilgore, who runs the Challenging E-Carceration project at the Center for Media Justice.

The rules for electronic monitors differ depending on the county and the offence. They are used both pre-trial and during parole and probation. In some cases the county covers the total cost of the technology – after all, it’s saving money on extra beds in prison – while in others fees for the wearer range anywhere from $10 to $35 per day.

Beyond the financial costs, ankle monitors introduce new ways for the wearer – disproportionately, people from impoverished and socially marginalised communities – to end up back in prison.

“The minute you have a device on you you can go back to prison because your bus is late, or the battery dies or there is a power outage,” Kilgore said.

Private companies will sometimes offer their surveillance technology at no cost to cash-strapped counties, instead pushing the cost on to the wearers.

William Edwards, a 38-year-old former office clerk, was made to pay $25 a day to wear a GPS-tracking ankle monitor between January and April 2017.

He had been driving an acquaintance’s car with the owner in the vehicle when police pulled them over in November 2016. Police found drugs in the owner’s bag and a gun in the glove compartment and arrested both men.

Edwards, who suffers from chronic myeloid leukemia, spent December 2016 in Alameda county jail in California, where his health began to deteriorate. He was released on the condition that he wore a GPS monitor.

“You just think about the opportunity of being home with the people who care about you,” he said. “But it was horrible. A living nightmare.”

Although Edwards had no convictions – and the charges were later dropped – he spent months as a prisoner in his own home, constantly harassed for money by LCA, the company that provided the tracking service. LCA demanded to know what his girlfriend earned so they could base their “means-tested” fees on his household income.

“I felt like I was dealing with a mafia loan shark,” he said.

Edwards is using the legal system to fight back. He is part of a class-action lawsuit against LCA and Alameda county, filed in early August, which accuses the county of allowing a private company to make profit-driven decisions about people’s freedoms, denying them due process. It accuses LCA of extorting fees from people through the threat of incarceration, in violation of federal racketeering laws.

The restriction of liberty is a government function, but when that service is provided by a private company there’s no public oversight of decision-making. In the case of LCA there’s no transparency over how it decides the fees to charge nor the techniques it users to ensure people cough up.

“You would never let a public probation officer threaten someone with jail if they can’t pay a fee,” said Phil Telfeyan, the founding director of Equal Justice Under Law, which is bringing the suit. “We’re not going to let a private company do that either.”

LCA declined to comment.

‘These are not silver bullets’
Despite the surge in use of ankle monitors, there’s not much rigorous research to suggest they are effective at preventing people from absconding or re-offending or at keeping the public safe. Some studies have, though, shown they can be useful for ensuring that sex and drug offenders comply with the terms of their parole, such as home confinement orders.

In many cases they add an administrative burden on probation and parole officers who have to deal with thousands of daily alerts, errors and false positives. This “crying wolf” aspect has caused officers to miss or ignore important alerts, meaning the public is lulled into a false sense of security.

In Colorado, a parolee called Evan Ebel cut off his ankle monitor before murdering a Denver pizza delivery man. He then tracked down Colorado’s prisons chief and shot him dead at his home. Parole officers didn’t realise he had gone awol for several days.

In California, the sex offender Phillip Garrido wore a GPS monitor and was visited at his home by parole agents at least twice a month. It took 18 years for agents to discover that he had been keeping Jaycee Dugard captive in his garden, having kidnapped her as a child. During that time Garrido repeatedly raped Dugard, fathering two children.


Olivia Solon, in Oakland, “‘Digital shackles’: the unexpected cruelty of ankle monitors.” The Guardian, August 28, 2018. 

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The New Penology – INNOVATIONS

“Our description may seem to imply the onset of a reactive age in which
penal managers strive to manage populations of marginal citizens with no
concomitant effort toward integration into mainstream society. This may
seem hard to square with the myriad new and innovative technologies introduced
over the past decade. Indeed the media, which for years have portrayed
the correctional system as a failure, have recently enthusiastically
reported on these innovations: boot camps, electronic surveillance, high
security “campuses” for drug users, house arrest, intensive parole and probation,
and drug treatment programs. 

Although some of the new proposals are presented in terms of the “old
penology” and emphasize individuals, normalization, and rehabilitation, it is
risky to come to any firm conviction about how these innovations will turn
out. If historians of punishment have provided any clear lessons, it is that
reforms evolve in ways quite different from the aims of their proponents. Thus, we wonder if these most recent
innovations won’t be recast in the terms outlined in this paper. Many of these
innovations are compatible with the imperatives of the new penology, that is,
managing a permanently dangerous population while maintaining the system
at a minimum cost. 

One of the current innovations most in vogue with the press and politicians
are correctional “boot camps.” These are minimum security custodial facilities,
usually for youthful first offenders, designed on the model of a training
center for military personnel, complete with barracks, physical exercise, and
tough drill sergeants. Boot camps are portrayed as providing discipline and
pride to young offenders brought up in the unrestrained culture of poverty (as
though physical fitness could fill the gap left by the weakening of families,
schools, neighborhoods, and other social organizations in the inner city). 

The camps borrow explicitly from a military model of discipline, which has
influenced penality from at least the eighteenth century – 

the prison borrowed from the earlier innovations in the organization of spaces and bodies undertaken by the most advanced European military forces.   No doubt the
image of inmates smartly dressed in uniforms performing drills and calisthenics
appeals to long-standing ideals of order in post-Enlightenment culture.
But in its proposed application to corrections, the military model is even less
appropriate now than when it was rejected in the nineteenth century; indeed,
today’s boot camps are more a simulation of discipline than the real thing.  

In the nineteenth century the military model was superseded by another model of discipline, the factory. Inmates were controlled by making them
work at hard industrial labor. It was
assumed that forced labor would inculcate in offenders the discipline required
of factory laborers, so that they might earn their keep while in custody and
join the ranks of the usefully employed when released. One can argue that
this model did not work very well, but at least it was coherent. The model of
discipline through labor suited our capitalist democracy in a way the model
of a militarized citizenry did not. 

The recent decline of employment opportunities among the populations of
urban poor most at risk for conventional crime involvement has left the applicability
of industrial discipline in doubt. But the substitution of the boot
camp for vocational training is even less plausible. Even if the typical 90-day
regime of training envisioned by proponents of boot camps is effective in
reorienting its subjects, at best it can only produce soldiers without a company
to join. Indeed, the grim vision of the effect of boot camp is that it will
be effective for those who will subsequently put their lessons of discipline and
organization to use in street gangs and drug distribution networks. However,
despite the earnestness with which the boot camp metaphor is touted, we
suspect that the camps will be little more than holding pens for managing a
short-term, mid-range risk population.” 

– Malcolm M. Feeley & Jonathan Simon, “The New Penology: Notes on the Emerging Strategy of Corrections and Its Implications.” 30 Criminology 449 (1992), pp. 463-464.

Image is: “Inmates jog laps aound their barracks They are in a High Impact Incarceration Program at Rikers Island, mid-1990s.

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“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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