“THE NEW PENOLOGY”

Malcolm M. Feeley and Jonathan Simon (1992)

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THE NEW OBJECTIVES

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 behaviour or even community organization, but of managerial processes.  Its goal is not to eliminate crime but to make it tolerable through systematic 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 success or failure of penal programs.  Under the new penology, recidivism rates continue to be important, but their significance has changed.  The world 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 recidivsim is dropping out of the vocabulary as an adjustment to harsh realities and is a way of avoiding charges of institutional failure.  […] 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 effectively.

                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 long-term 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 on 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 (1990) 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 evaluation 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 (Heydebrand and Seron, 1990: 190-4; Lipsky, 1980: 4-53).

                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, mangers 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 (Jacobs, 1977).  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 not 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 replace consideration of fault with predictions of dangerousness and safety management and, in doing so, modifies traditional individual-oriented doctrines of criminal procedure.  […]

NEW TECHNIQUES

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 centres; 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 (Greenwood, 1982; Moore et al., 1984).  Incapacitation promises to reduce the effects of  crime 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 offence or upon the 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.

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THE NEW DISCOURSE OF CRIME

Like the old penology, traditional ‘sociological’ criminology has focused on the relationship between individuals and communities.  Its central concerns have been the causes and correlates of delinquent and criminal behaviour, and it has sought to develop intervention strategies designed to correct delinquents and decrease the likelihood of deviant behaviour.  Thus, it has focused on the family and the workplace as important influence of socialization and control.

                The new penology has an affinity with a new ‘actuarial’ criminology, which eschews these traditional concerns of criminology.  Instead of training in sociology or social work, increasingly the new criminologists are trained in operations research and systems analysis.  This new approach is not a criminology at all, but an applied branch of systems theory.  This shift in training and orientation has been accompanied by a shift in interest.  A concern with successful intervention strategies, the province of the former, is replaced by models designed to optimize public safety through the management of aggregates, which is the province of the latter.

                In one important sense this new criminology is simply a consequence of steady improvements in the quantitative rigour with which crime is studied.  No doubt the amassing of a statistical picture of crime and the criminal justice system has improved researchers’ ability to speak realistically about the distribution of crimes and the fairness of procedures.  But, we submit, it has also contributed to a shift, a reconceptualization, in the way crime is understood as a social problem.  The new techniques and the new language have facilitated reconceptualization of the way issues are framed and policies pursued.  Sociological criminology tended to emphasize crime as a relationship between the individual and the normative expectations of his or her community (Bennett, 1981).  Policies premised on this perspective addressed problems of reintegration, including the mismatch among individual motivation, normative orientation and social opportunity structures.  In contrast, actuarial criminology highlights the interaction of criminal justice institutions and specific segments of the population.  Policy discussions framed in its terms emphasize the management of high-risk groups and make less salient the qualities of individual delinquents and their communities.

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