Dramatic changes to criminal law have been occurring since the 1980s. These reflect the way in which it has taken on a risk-prevention role, in addition to what had previously been its carefully limited capacity to react to crime that has been committed. In contrast, this new capability takes the form of a range of controls that are intended to prevent crime occurring, a change that had hitherto been largely prohibited or greatly restricted in the common law jurisdictions on which this book is based—the US, the UK, New Zealand, Australia and Canada. Penal policy has also been harnessed to this process, to the point where risk considerations have become the most important determinant of prison design, bail and parole decision-making and much of the sentencing in between.
Risk and the New Paradigm of Criminal Law and Punishment
Feeley and Simon (1992) had first identified a growing preoccupation with risk in the management of prison populations. Clearly, though, this was a mere overture to the much more extensive way in which risk has since inveigled itself into contemporary criminal justice systems. We can thus find, variously across these Anglophone societies, by-laws that prescribe alcohol-free zones in public places; anti-congregation laws against gang members; anti-loitering and anti-begging laws; serious crime prevention orders; anti-social behaviour laws; laws restricting the movement of particular groups of offenders in public space; laws that allow categories of sex and violent offenders to be held in “civil detention” at the end of a finite prison sentence; anti-terrorism laws that impose curfews, restrictions on places of residence and use of the internet, reinforced by electronic monitoring and other forms of surveillance; and greater use of indeterminate sentencing. What all these measures have in common is their intention to control and prevent the risk of crime. None were in existence before 1980, with the exception of indeterminate sentences which, having largely died out by then, have since been resurrected.
What does this assortment of restrictions and prohibitions before a crime has been committed represent? They reflect the emergence and rise of what can be termed the security sanction (Pratt and Anderson 2016). This is intended to protect the public from those who put their security at risk, even if this is at the expense of the rights of individuals to be protected from arbitrary or excessive use of criminal law and penal sanctions. This used to be one of the main jurisprudential and ethical arguments against such preventive interventions. On this matter, the distinguished legal scholar Andrew Ashworth (2004, 265) has written that “there comes a point when the [preventive] legislative devices being used or proposed are so disrespectful of fundamental principles that questions have to be asked about their legitimacy in a country committed to the protection of human rights.” This is correct, according to the way in which human rights have previously been defined and understood. But it is not correct according to the way in which the rise of the security sanction shows how human rights are being redefined within a different paradigm of law and punishment from that in which they had previously been encased. This new paradigm includes the capacity to control risk, while giving priority to public protection.
This then means that, when being used for these preventive purposes, the criminal justice process is no longer framed around questions of guilt or innocence; nor how much punishment a particular crime merits; nor is it bound by all the previous restraints on punishment borne out of concerns about the over-prediction of dangerousness. On the contrary, “the morality of [a] risk society is thus thoroughly utilitarian. Efficiency in loss reduction is the moral imperative” (Ericson and Haggerty 1997, 124). Hence the shift in the understanding of human rights to fit within law and punishment’s new paradigm. Rather than ensuring that the rights of all individuals are protected in the criminal justice process, it has the utilitarian intention of ensuring that the majority have the right to be protected from the few, even if no crime has yet been committed by them.
Similarly, controlling risk through criminal law and punishment has different operational logics from those thought to underlie “the new punitiveness,” “the culture of control” and so on. Within those analytical frameworks, “those who refuse to become responsible, to govern themselves ethically, have also refused the offer to become members of our moral community. Hence, for them, harsh measures are entirely appropriate. Three strikes and you are out: citizenship becomes conditional upon [past] conduct” (Rose 1999, 267). Such scholarship, though, conflates risk control measures with this more punitive, moralistic trajectory of punishment that has been seen as the hallmark of the neo-liberal agenda since the 1980s (Garland 2001). Risk control initiatives, although introduced by the same governments over the same period, sometimes as part of the same penal package, are driven by a different economy of law and punishment. Controlling risk is the response to issues of uncertainty and insecurity (Ericson 2006), rather than immorality. Here, citizenship is conditional on assessment of future conduct.
Thus, while the new punitiveness and related characterisations of this era speak of the need for new penal excesses in response to crime that has been committed, this risk-based paradigm of law and punishment is concerned with identifying and then controlling those whom it is thought are likely to commit particular types of crime, rather than waiting for them to do so.
The Duality of Risk
The growing influence of risk on the design of criminal justice is one aspect of the more general preoccupation with risk that has occurred over the same period, as reflected in all the “risk talk” in the leading newspapers of these societies. While “risk” was mentioned in the Times (London, UK) in 8074 articles in the 1960s, it was mentioned on 51,620 occasions in the 2010s. Similarly the New York Times: 12,238 articles in the 1960s and an increase to 41,549 in the 2010s. In the Globe and Mail (Canada), an increase from 6936 articles in the 1960s to 31,827 in the 2010s. From the time when the Sydney Morning Herald and the Dominion Post (New Zealand) became available online—(1990 and 1996 respectively)—the preoccupation with risk had already begun. In the former newspaper, we thus find 19,241 references to risk in the 1990s, and 30,147 in the 2010s. In the latter, 4795 between 1996 and 1999, and 18,041 in the 2010s.
Yet amongst all this talk, there is a duality in the way in which risk is understood. On the one hand, risk-taking is actively sought out. Holidays projecting risk and excitement have become a major feature of tourism and leisure industries:
But while the search for excitement and risk has become an increasingly important feature in the merchandising of these industries, the other side of risk-thinking has come to have very different associations in these settings. Here, it takes the form of warnings about the level of terrorist threat at holiday destinations; what we must then do if there is an attack (the Daily Mail reported that “Holiday reps … are being trained to deal with potential terrorist attacks at hotels across Europe … this includes what to do if your hotel is attacked by masked people with guns. Holiday makers will be told to escape to their rooms if they can get there safely … and to barricade themselves in”, Newman 2019); and what procedures we must follow to successfully navigate risk-prevention procedures at airports. Simultaneously, then, risk is also something to be feared and to be avoided.Adventure tourism has been booming in recent years as world-weary travellers look for exciting new destinations and activities—and the chance to post daring pictures to their social media feeds. The size of the global market has more than doubled over the past five years and is now worth £450 billion a year. Almost one in every 20 holidays taken by Britons is now adventure or activity based. … For a long time Iraqi Kurdistan was a popular destination. … Until a few years ago, adventurous travellers could visit Syria or Libya. (Ellson 2019)
By the same token, risk-taking is encouraged and applauded: this is how champions on the sports field might win their medals; this is how fortunes are made; restaurants can advertise their risky, daring, exciting menus as a way of distinguishing themselves from their competitors; extreme sports involving, for example, ice climbing and sky diving, have come to have large audiences; children are encouraged to participate in “risky play”; a city that is “vibrant” with a flourishing night-time economy, and the sense of risk and excitement that comes with this, is an attraction for investment and for a wealthy, mobile population to make it their home and so on.
Yet risk warnings simultaneously circumscribe these and virtually all other aspects of everyday life: taking undue risks might mean defeat on the sports field; fortunes that can be made by stock exchange trading, for example, can just as easily be lost; however attractively or excitingly a restaurant presents its food, there are familiar warnings about the need for careful diet and the avoidance of risk; children’s journey’s to and from schools have become carefully guarded (“don’t talk to strangers”); and while urban regeneration brings attraction and excitement, in the UK every public and private place is now assessed from a safety perspective. There, ominous warnings about risks on public transport began to appear in the early 1990s: “no-one is vetted, everyone is acceptable as a passenger”—hence the need for travellers to be alert to risk. The presence of “security officers” is advertised on UK trains. When we check in at a hotel, we may see signs telling us that their risk assessment plan is available for inspection. Meanwhile, notices in bus stations in Australia advise us “what to do in case of an evacuation.”
Accordingly, while risks are eagerly pursued to make life more exciting, we protect ourselves as much as we can from the unwelcome dimensions of risk. And then the security sanction, in the various forms that it takes across these societies, represents another layer of protection from risk, over and above the precautions that individuals take to protect themselves. But again, as Baker and Simon (2002, 2) note, “if risk is something to be celebrated, it cannot only be about harm or danger.”
What is it, then, that has brought about this duality of risk: a proliferation of risk-seeking, of risk interest, of risk awareness, of risk warnings, and of risk controls in the form of the security sanction? To a large extent, this has been the product of governments pursuing neo-liberal agendas since the 1980s. Their intention has been to set risk free from the economic restraints that had been placed on it during the post-war commitment to more extensive welfare state provision, intended to bring certainty and security to everyday life. In contrast, in this neo-liberal mode of governance, uncertainty and insecurity have been seen as necessary accoutrements if risk-taking enterprise is to flourish. By removing state guarantees intended to prevent business failure, or to secure a “soft landing” in its event, it was envisaged that this would then allow a new kind of hero to emerge: the business entrepreneur, more ruthless, sharper and independent minded now, engaged in wealth creation, primarily for themselves—rather than the selfless bureaucrat of the welfare era dispensing public service for the good of the community as a whole. From the 1980s, however, rather than allowing the state to determine the course of their lives, individuals have been urged take charge of this themselves, for good or bad.
Governing Through Risk
In the course of this restructuring, new possibilities of human existence, shaped around consumerism and technology rather than manufacturing and unrelenting physical labour, have come into existence. However, the possibilities of advancement that these bring exist alongside new dange...