Dangerous Offenders

Punishment and Social Order

Mark Brown, John Pratt

• Publisher: Routledge
• Year: 2002
• eBook ISBN: 9781134637034
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

This highly controversial new book considers how the dangerous offender has become such a figure of collective anxiety for the citizens of rationalised Western societies. The authors consider: * ideas of danger and social threat in historical perspective* legal responses to violent criminals* attempts to predict dangerous behaviour* why particular groups, such as women, remain at risk from violent crime.This inspired collection invites us to rethink the received wisdom on dangerous offenders, and will be of interest to students and scholars in the fields of criminology and the sociology of Risk.

Part I
Dangerousness
A sociological history

Chapter I

Risk societies and the government of crime

Pat O’Malley

In the past few decades, it is argued, the organisation of many fields of government and social life – and in particular the government of crime and ‘social problems’ – has been reshaped around techniques and models of risk management. The principal characteristics of risk in this sense are associated with the management of potential harms: risk identification; risk reduction; and risk spreading. Studies of criminal justice, psychiatry, health, industry, unemployment and the environment have all charted and attempted to explain this phenomenon of governmental planning around issues such as the dangerousness of criminals and of the mentally ill, environmental risks, traffic and industrial accidents, the centrality of insurance and so on (for example, Adams 1995; Green 1997; O’Malley 1998; Ericson and Haggerty 1997; Feeley and Simon 1992; Simon 1987; Beck 1992; Douglas 1992).¹ In this literature, the ‘risk society’ – a society substantially organised around risk management – is identified as a comparatively recent phenomenon, generally dating from the 1950s or 1960s.

While I have no doubt that we now live in societies in which risk occupies a prominent and distinctive place, I argue in this chapter that risk is a core characteristic of all modern liberal and capitalist societies, dating back to about the end of the eighteenth century. This suggestion arises out of a number of related difficulties with the risk society thesis.

All proponents of the risk society thesis assume that risk is identified with ‘negative risk’, that is, the risk of harm or danger. They depict contemporary societies as if they were not also, perhaps equally, characterised by governmental imageries of risk as positive. Thus for Ulrich Beck (1992), the most influential of risk society theorists, risk society is defined by the formation of a consciousness and form of government focused on the distribution of ‘bads’ (harms) rather than ‘goods’. This seems strangely short-sighted in the present era of enterprise culture with its emphasis on the material rewards and personal fulfilments created by active participation in the competitive market. Yet as soon as this point is made, our attention is drawn not so much to the peculiar nature of the present, but to the crucial place that fostering and managing economic risk-taking has occupied in the government of capitalist economies for the better part of three hundred years. A little further reflection also draws to mind the prominence of social and moral discourses on risk throughout this period: prohibitions on gambling and some forms of market speculation; exhortations to be thrifty; furious debates over insurance and personal responsibility, and so on. What also becomes clear is that risk plays many different roles, and appears in many different guises and institutional forms, over this long period. Thus while the current era of ‘enterprise culture’ focuses on the autonomous management of risks by individuals and the benefits of rational risk taking, the welfare state was ‘the insurance state’ (Beck 1992) that governed to an unusual extent through collective or ‘social’ forms of risk minimisation and risk spreading, and in the nineteenth century, individuals were instructed to be prudent and risk averse. Of course these are simple and perhaps crude distinctions, but they indicate that we need a rather different approach to understanding the place of risk in contemporary societies than has been the case in the risk society literature. Such an approach will need to move beyond a monolithic notion of risk as the overarching characteristic of a society. It will need to account for variations in the relative prominence of risk-based governance over time, the kinds of political meaning and evaluation of risk, and the kinds of governmental roles to which risk is assigned. It will need to account for variations in the nature of forms taken by risk-based governance, and the diversity of techniques that are adopted. But in addition to recognising such variability in risk, it should recognise one of the major dangers inherent in the idea of risk society itself, namely, the tendency to interpret all major developments as if they are shaped by risk without recognising that risk is itself marginalised, fostered or shaped in different ways and degrees by multifarious other issues and developments. The welfare state, for example, was not simply shaped by risk, but by broader concerns with distributional justice and equality, fears of class unrest, issues of social and economic efficiency, and so on. Piecing all of these points together questions the utility of the unified and totalising image of ‘the risk society’ without negating or minimising the importance of risk as a feature of economically and politically liberal societies. In what follows, with special reference to the government of crime, I explore such an approach through a brief sketch of a genealogy of risk in three major epochs in modern government.

Punishment, discipline and risk in the nineteenth century

While it would be a parody to describe as backward looking the ‘traditional’ world and the ‘moral’ economy of the eighteenth century, nevertheless the development of capitalism and liberalism centred the future in new ways. By the beginning of the nineteenth century, the future was no longer understood to be shaped simply by sovereign commands, the will of God or the hand of fate. Rather, it was to be formed by the actions of free subjects. Free subjects were enjoined to think about the future in new ways, and to develop calculative techniques that enabled them to govern the future from the present. ‘Freedom’ and ‘risk’, this suggests, in many ways refer to the same mental set that envisages the future as governable primarily by calculation.

This was the imagined order of laissez-faire capitalism.² In the new economy, the market was to be governed by individual risk takers, whose calculations about the future were the foundation of capital growth. Neither tradition nor state should intervene in the freedom of the market. The law increasingly and rapidly took account of this, creating new institutions and new risk-based images of the citizen. In what is probably the central institutional shift, during the first half of the nineteenth century there was a revolution in contract as subjects were invested with new capacities, rights and obligations. The old order envisaged contract as the instantaneous transfer of rights in already existing things: it treated all exchanges as though they were exchanges of property. Access to legal redress for breach of contract required that someone already had acted on an agreement, the law sought to ensure that the parties performed exactly as they had agreed and redress involved the restoration of order through a requirement for the specific performance of the exchange. The emergence of executory contracts during the early 1800s, however, required only that a promise had been made, accepted, and protected a contracting party’s ‘expectation interest’ – including a right to profits that existed only as possibilities at the time of the agreement. In this way, contract law came to protect profits that always remain hypothetical – that never come to exist precisely because the breach of contract prevented their realisation. In the eighteenth century, all this most likely would have been regarded as socially dangerous speculation, and frowned upon rather than protected (Kercher 1990). But in the new order, the plaintiff was imagined to be someone who had correctly and rationally calculated the future, whose rational risk-taking was not only legitimate but vital to the economic wellbeing of the country, and who had full right to legal protection.³

Similar shifts occurred with respect to the setting of fair prices and exchanges. In the eighteenth century, these exchange rates were set largely by custom or fiat. However, in the ‘will’ theory of contract, the law began backing away from determining the fairness of prices or exchanges. Increasingly it imagined contract as an agreement in which all parties had examined the future, and – on the balance of probabilities – seen in the exchange some net advantage to themselves. It was not up to the court to protect those who ‘miscalculated’. Even contract workers who suffered harms in their employment might not be protected by law if these were regarded as foreseeable risks of their trade. They were deemed to have built into their wage agreement the likelihood and the probable cost of these risks. Having thus voluntarily assumed the risk, they could, therefore, have no right to compensation in law for harms already compensated by the wage (Wrightman 1996).

More broadly, the liberal conception of ‘freedom’ assumed a subject possessed of this kind of rationality – one that was calculative about the future. The subject imagined by liberal political theory, was imbued with a form of risk consciousness. In Bentham’s felicity calculus, for instance, this was understood to be a mental process of calculating two future states: the balance of pleasures and pains arising from a proposed course of action, and the probability of these various consequences being realised. In this sense, risk consciousness is built into the constitution of the liberal citizen. Liberalism’s core principle of individual responsibility thus assumed an individual who had a moral duty to take account of foreseeable events, and indeed, to accumulate such available information as would assist such calculation. Consequently, while the poor of the eighteenth century were provided with relief when their means of support failed, nineteenth-century liberalism substantially stripped away this buffer. To a much greater extent it exposed individuals to the forces of the economy, and required them to be responsible for managing the consequences of such foreseeable calamities as the unemployment, sickness or death of a breadwinner. Some elements of this responsibility clearly applied old and familiar proscriptions against idleness. But increasingly the poor – indeed all subjects – were required to take on new attributes and learn new skills to govern the future. In particular, thrift became a core, preventative Victorian virtue, and the first half of the nineteenth century witnessed the formation of new institutions – such as savings banks and life insurance schemes – designed to render thrift a technology for governing the future even for the poorest of citizens (O’Malley 1999b).⁴

Needless to say, thrift was by no means alone in this role. Dean (1991: 219) argues that the morals of thrift, frugality, prudence and industry were drawn together in ‘a continuous thread . . . provided by prevention’ and that ‘ultimately, the liberal government of morals would be concerned with the prevention of those modes of existence which elevate poverty to a “social danger”’. Liberal government’s pivotal focus on prevention thus appears as a much more general and long-term characteristic of rule than might be assumed from a reading of the risk society literature. In the field of criminal justice this generated a:

panoply of measures specifically designed for a systematic, effective and economical strategy for the prevention of crime. These measures include the establishment of a perpetually vigilant body concerned with the detection of crime, governed by a central board; an agency to collect such intelligence to ascertain the types and causes of crime; a ministry of police . . .

(Dean 1991: 195)

These developments were linked to changes in the regime of criminal justice sanctions. Both the reduction in severity of punishment (to the point, in theory at least, where this exceeded only marginally the ‘wages’ of crime) and the regime of discipline, assumed a rational choice actor who weighed the probable costs and benefits of offending (Foucault 1977). In turn, through the work of Colquhoun, Peel, Chadwick and others, this was linked to the formation of a preventative police, for the emphasis in such Benthamite schemes was that the rational choice offender would be deterred as much by the probability of capture as by the calculus of probable costs and benefits.

Yet such preventative governance, while clearly implying that a conception of risk-management is central to government, is not to be associated with a notion of a society governed predominantly by actuarial techniques – such as social insurance or public risk analysis. Thus I would disagree with some risk society theorists who suggest that ‘actuarialism’ is risk society’s core characteristic – that is, government through the manipulation of statistical distributions, rather than the disciplinary normalisation of individuals (e.g. Simon 1987).⁵ It is worth recalling that for Foucault (1977), discipline is a technology of freedom: a technology for rendering free subjects predictable. ‘Discipline’ and ‘risk’ therefore are not hostile to each other, nor is actuarial governance the hallmark of risk society. Rather, within liberal frameworks of risk and freedom, disciplinary and actuarial techniques are set in variable relationships.

In the nineteenth century, this relationship was characterised by the overwhelming predominance of discipline and, as Simon suggests, the relegation of actuarial techniques to the margins of government. First, the liberal problematic of social danger linked the idea of dangerousness primarily to ‘the dangerous classes’ (Simon 1988; Pratt 1998). It was Foucault’s (1977) view that no paradox existed in the resort to disciplines (which work on and through individuals) in order to govern the dangerous classes. Quite to the contrary, he argued that the disciplines’ focus upon the individual had crucial political effects, for they disaggregated the dangerous classes in crucial ways. By focusing upon the pathological individual, the political reality of these classes was disrupted; by subjecting ‘criminals’ to scientific method, the apolitical reality of their pathology was neutrally confirmed; by locating such individuals in segregated buildings, their difference was graphically symbolised. Over and above this, as Simon (1988) has also stressed, the coercive substrate of the disciplines provided means to ‘tame’ the threat of mass disorder that confronted early liberal government.⁶ The liberal imagery of ‘responsible freedom’ was enforced by disciplinary institutions such as the factory asylum, prison and school – coercive arrangements for transforming members of the dangerous classes into ‘docile bodies’. In this sense, the creation of predictable, free individuals, governed the dangerous classes through individualised, disciplinary technologies of risk management.

Second, the sciences that were developed in large measure out of disciplinary institutional contexts – criminology from the prison, psychiatry from the asylum, medicine from the hospital – necessarily lagged behind the institutional developments themselves. In this era of the formation of disciplines, therefore, the governmental problematic of free will (and its particular take on risk) therefore had yet to be substantially conditioned by the deterministic causality of the disciplinary human sciences. The corollary was a particularly voluntarist conception of subjects’ freedom and, accordingly, the primary forms of government were those that worked through and upon free will. Thrift and frugality, diligence, self denial, the voluntary subordination to ‘superior’ entities and values, the crystallisation of these into the notion of ‘character’, all reflect techniques for governing freedom and its risks, that were as yet hardly touched by the sciences of society and of the mind.

Third, given the problematic of the dangerous classes, and of social danger more generally, it is hardly surprising to find that the social allocation of risks and their government were structured by class. Positive evaluations of risk-taking, and the fostering of risk-taking, were associated almost exclusively with the entrepreneurial classes, and promoted in relation to business activity.⁷ For all other classes and activities, and most especially for the mass of the working people, risk was identified with danger and harmful consequences. Through the lens of social danger, ungoverned exposure to negative risk, and ‘unnecessary’ risk-taking, thus already present ‘risk’ itself as a problem in the governance of the poor.

From this perspective, the scene was set for the rise of the welfare state, and its generally negative evaluation of risk. The ascendancy of the positive human sciences toward the end of the century, took this problematic of social danger and refrained it under scientific government. Viewed thus, the welfare state that many risk society theorists regard as the actuarial state or insurance state (Simon 1987; Beck 1992; O’Malley 1992) may have been founded and framed not solely in probability (which we almost inevitably associate with risk), but perhaps even more so through the deterministic disciplines that made up the positive human sciences.

The welfare state and the welfare sanction

The positive human sciences struggled (as they still do) with their poor predictive power. Yet they existed in an environment in which the advances of the natural sciences and technologies virtually assured the hegemony of positivism. The poor predictive capabilities of the human sciences, it was most generally assumed, was not a function of the intrinsically probabilistic nature of the social. Rather, it reflected the failure to discover the determining laws that governed society and the economy, and/ or the difficulty of combining these in the sufficiently subtle ways required by the ‘complexity’ of social phenomena. This characteristic was not restricted to the social sciences, although it was far more visible there, for as Green (1997) shows, the divergence of outcome from prediction was almost universally understood in similar ways across the natural and medical sciences, thus insulating faith in determinism. The importance of such an observation is that however we choose to explain the rise of the welfare state – as a capitalist resolution of the legitimation crisis, as an effect of the scale of monopoly capitalism, as a victory of the working classes, or even as the first expression of the risk society – we should nevertheless recognise that one of its central characteristics was tha...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contributors
• Introduction
• Part I Dangerousness A sociological history
• Part II Legal responses and responsibilities
• Part III Practical risks Danger in the penal context
• Part IV Violence, danger and modern government The future