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date: 12 December 2017

Risk, Actuarialism, and Punishment

Summary and Keywords

Risk is a pervasive feature of contemporary life, and has become a key feature of penal policy, systems of punishment, and criminal justice services across a number of the Anglophone jurisdictions. Risk as an approach to calculating the probability of “danger” or “hazard” has its roots in the mercantile trade of the 16th century, growing in significance over the intervening centuries until it pervades both the social and economic spheres of everyday life. Actuarialism, that is the method of statistically calculating and aggregating risk data, has similar roots, steeped in the probability calculations of the insurance industry with 20th-century extension into the arenas of social welfare and penality. Within criminal justice one of the first risk assessment tools was the parole predictor designed by Burgess in 1928. Since then we have seen a burgeoning of risk assessment tools and actuarial risk practices across the penal realm, although the extent to which penality is totally risk based is disputed. Claims for a New Penology centered on risk have been much debated, and empirical evidence would tend toward more cautious claims for such a significant paradigm shift.

Prevention and responsibilization are often seen as core themes within risk-focused penality. Risk assessment is used not only to assess and predict future offending of current criminals, but also to enable early identification of future criminals, “high crime” areas, and those in need of early interventions. The ethics, accuracy, and moral justification for such preventive strategies have been extensively debated, with concerns expressed about negative and discriminatory profiling; net-widening; over targeting of minority groups especially for selective incarceration; and more recently criticisms of risk-based pre-emption or “pre-crime” targeting, particularly of ethnic minorities. Responsibilization refers to the techniques of actuarial practices used to make persons responsible for their own risk management, and for their own risk decisions throughout the life course. In respect of offenders this is best expressed through corrective programs focused on “right thinking” and re-moralizing offenders toward more desirable social ends. Those offenders who are “ripe for re-moralization” and who present a level of risk that can be managed within the community can avoid custody or extended sentencing. Those who are not, and who present the highest levels of risk, are justifiably selected for risk-based custodial sentences. Such decision-making not only requires high levels of predictive accuracy, but is also fraught with severe ethical challenges and moral choices, not least about the desired balance between risks, rights, and freedoms.

Keywords: actuarial, actuarialism, risk, penality, New Penology, prevention, preventive sentencing, punishment

What Is Risk?

Risk has become a powerful and pervasive word in contemporary life. It has been described as the “world’s largest industry” (Adams, 1995, p. 31), with numerous risks confronting us as we conduct our everyday lives. These risks range from those we voluntarily seek like thrill-seeking, lifestyle choices, or gambling; to those that are imposed upon us by others such as environmental pollution or becoming the victim of crime. Risks come in many shapes and sizes, from high-impact low-probability risks like tsunamis, to man-made risks associated with hazards such as nuclear discharge (e.g., the event at Fukushima, Japan in 2011), to the low-level costs many of us incur when trying to win national lotteries. Risk can have different meanings and occurs across a range of contexts and locales, but in the contemporary age it is largely defined negatively. Risk is usually defined as the probability that an adverse event will occur (see Oxford English Dictionary, 2016 for example), coupled with a notion that such an adverse event is both undesirable and preventable. The roots of risk in calculating both the likelihood and impact of adverse events have a long history. Early usage of the term risk simply meant “taking a chance,” for example in the world of gambling, and the possibility of positive as well as negative outcomes (e.g., the Latin word risicum as used by Roman soldiers throwing dice for Christ’s clothes at the foot of the cross). However, over time negative connotations have tended to outweigh positive framings. These roots in adversity, negativity and “calculating the odds” have been important in the development of risk-based thinking into the 21st century.

By the 16th and then 17th century, trade, and particularly mercantile trade, had given risk calculation and risk avoidance considerable impetus. Marine insurance in particular became important in under-writing cargos on trade routes with the “New World,” and in indemnifying from loss precious cargoes on the Spice Route (Turner, 2004) and those routes associated with the slave trade. Lloyds of London, for example, was founded in 1688 primarily to underwrite marine insurance. From this period onwards statistical calculations of risk became increasingly important (Hacking, 1990) with the rise of “prudential insurance” to statistically calculate the probability of certain risks and insure against the loss incurred should they occur. Such calculations began to “tame chance” (Hacking, 1990), using actuarial tables to more accurately assess risk probability. For example, in 1762 Equitable Life began to sell life insurance based upon statistical tables of death rates among the population as a whole. The Scottish Widows Fund and Life Assurance Society, conceived by Scottish gentlemen in 1812 at the height of the Napoleonic Wars, went on to sell pensions to widows of Scottish mercenary soldiers leaving to fight abroad. Today, known as “Scottish Widows,” it has over 6 million customers. These initiatives began the actuarial approach to risk calculation that underpins the predominant approach to risk assessment today, extending from the insurance industry to large aspects of social, financial, and corporate life.

The Rise of Risk and Actuarial Justice

Actuarialism has been defined as a “suite of risk calculation techniques that underpin correctional policies” (McLaughlin & Mucie, 2013, p. 6). More broadly, actuarialism uses statistical calculations of risk and formal risk assessment methods to aggregate risk across the population as a whole in order to identify and manage risks. Less attention is paid to the motivations underpinning offending, with more attention paid to early identification, targeting of individuals and groups for selective incarceration and other interventions, and where possible preventive strategies. The origins and rise of risk-based actuarial justice has been much debated (see Reichmann, 1986 for an early analysis). Some commentators see the roots of actuarial justice in the extension of actuarialism to numerous aspects of social life by the early 20th century (Feeley & Simon, 1992). Others see a much longer lineage, extending back to 17th-century concerns with insurance, prudentialism, and problems of social regulation (Rigakos & Hadden, 2001), gaining momentum in the 18th and 19th centuries around concerns to regulate the emerging “dangerous classes” (Pratt, 2000a). The Benthamite panopticon of the late 18th century is perhaps the epitome of these concerns to punish but also to discipline and regulate (Bentham Project, 2010). Debates about the origins of actuarialism and its growing role in social regulation and crime management tend to be posed from two broad theoretical approaches.

Class-Based Analyses

Macro-level class-based analysis of risk examines the role of risk in class restructuring under conditions of emerging and advanced capitalism (see Rigakos & Hadden, 2001). Risk concerns are explicitly linked to the “techniques, aims and interests of seventeenth century English capitalists” and the social relations arising out of early 17th-century mercantile capitalism (Rigakos & Hadden, 2001, p. 61). In contemporary times a risk-based penality is seen as crucial to regulating the “underclass” produced by advanced globalized capitalism. The role of risk-based penality is to regulate the poor, the dispossessed, and those left under-regulated by a shrinking welfare state and the economic conditions prevailing under global capitalism (Denney, 2008; Miller, 2014; Wacquant, 2009). The term “dangerous classes,” has been subtly replaced by the term “socially excluded.” Risk is of course central to capitalism. It is central to the entrepreneurial enterprise to take risks in order to achieve gains. However, the identification and avoidance of “bad” risks is also central to the smooth running of capitalism and the efficient management of civil society. Class-based analyses have contributed a great deal to understanding the development of risk practices in contemporary life, providing both a long view, but also a macro lens through which to critique current trends (see Beck, 1992 for a seminal work). Limitations to class-based analyses center on a tendency to “totalizing” and causal “theoretical scenarios” not always fully supported by empirical studies or by actual on the ground practices (O’Malley, 2001).

Governmentality Analyses

In contrast to macro-level analyses, governmentality studies focus on the mirco level. In essence, how state power and government are carried out through specific programs, activities, and normative standards. Theoretically stemming from the work of Foucault (1991), theoretical and empirical work in the justice and crime arenas has been carried out by a number of commentators, but most notably by O’Malley (see O’Malley, Weir, & Shearing, 1997; O’Malley, 2001, 2016); and by Rose (2000, 2004). Governmentality theorists “explore risk in the context of surveillance, discipline, and regulation of the populations, and how concepts of risk construct particular norms of behaviour which are used to encourage individuals to engage voluntarily in self-regulation in response to these norms”(Lupton, 2013, p. 25). This governance at the “molecular level” encourages the active, prudent citizen to self-regulate toward the preset norms of society (Rose, 2004). For example, by pursuing healthy lifestyle choices or taking reasonable precautions in the face of crime. Those who fail to exercise prudent, correct choices are marginalized and excluded, and of course offenders are a case in point (Kemshall, 2006). Reintegration and rehabilitative strategies are justified for those who are deemed fit and willing for moral re-engineering. Those who are not fit for moral re-engineering are excluded, most notably in the crime arena by the use of custody. Governmentality studies largely focus on systems of discipline and regulation of the population and the role risk plays in “social sorting” and the establishment of security (O’Malley, 2016; Wacquant, 2009).

The key contribution of governmentality studies has been in the area of mapping risk inequalities, both in the distribution of risks, and also in the role of risk in compounding existing inequalities. The “socially disadvantaged,” for example, do not necessarily have the resources to make “prudent choices,” and the opportunities for risk avoidance can be structurally constrained (for example, by housing or employment opportunities). Thus risk experiences, risk exposure, and risk choices can be mediated by structural positions of race, class, and gender. “Social sorting” can also have inequitable consequences, sorting persons for further exclusion, and over time eroding rights and freedoms. Risk profiling has also been used to support economically efficient preventive strategies. For example, sorting offenders into those who are “good bets” for rehabilitation and those who are not; and in some circumstances resulting in early prevention before offending, through early years’ intervention for children at risk and parenting programs. Thus “governmentality analyses have increasingly scrutinized such policies and practices and provide important critiques on the growing political response to governance issues and risk” (Kemshall, 2008, p. 43).

While presented as differing and at times competing approaches to risk analysis, there are areas of overlap, for example, in concerns about social regulation and the “underclass,” and in the inequitable distribution of risks. There is also considerable consensus that the main precursors and key themes of risk actuarialism are:

  • The rise and extension of capitalism, and the development of techniques to discipline and regulate the workforce, particularly the “underclass.”

  • The use of actuarial risk practices to ensure civil stability and social order.

  • Concerns with the management of the “dangerous class” and the risk distribution of “bads.”

  • The role of risk in social utility thinking, in particular the influence of modernist reason and rational thought in the development of economic and legal approaches to social and penal policy.

  • Economic pressures on crime management and concerns to effectively and efficiently manage criminal justice systems.

The retreat from liberal crime management and penal policy under conditions of advanced liberalism (adapted from Kemshall, 2009, p. 66).

The Key Features of Actuarialism

Actuarial risk assessment has its roots in the insurance industry and is based on statistical calculations of risk across the population as a whole. Initially such calculations were carried out by actuaries, derived from the Latin word actuarius for account keeper, derived from the word actum for public business. The word actuarial came into common usage around 1545 and was originally associated with marine insurance. The modern meaning within the insurance industry was first recorded in 1849 (Actuary Magazine, n.d.). Statistical techniques are used to generate reliable risk factors from aggregated data to predict risky events, for example taking aggregated data on death rates to set the likelihood of death at particular ages when selling life assurance. Within criminal justice, one of the earliest examples of actuarial techniques for risk prediction was Burgess’s parole predictor, in which data on factors associated with success or failure on parole were collected and aggregated, applied retrospectively to a sample for validation, and subsequently formalized into a risk assessment tool to calculate parole failure probabilities (Burgess, 1928, 1929, 1936). This technique has been used to calculate risk of reoffending and translated into prediction tools, for example, the Offender Group Reconviction Score (OGRS) used as the basis for the England and Wales reconviction predictor the Offender Assessment System (OASys) (Copas, Ditchfield, & Marshall, 1994).

This approach to risk objectively frames risk as knowable and measurable through formalized risk assessment methods. Accurately measuring risk is seen as a matter of appropriate tool design and appropriate use by practitioners (Bonta & Wormith, 2007). From the early parole predictor to the present day, risk assessment tools have continued to evolve. Currently there are generic risk assessment tools focused on re-conviction likelihood, parole success or failure, and allocation of interventions for community supervision. Specialist tools have also evolved to further risk assess violent offenders, sexual offenders, and perpetrators of domestic violence (see Risk Management Authority, 2013 for a full review of available tools). Over time risk assessment tools have evolved to comprise actuarial risk factors and also to embed structured clinical assessment within the tools. Clinical assessment involves practitioner case by case assessment of the individual using diagnostic techniques. Holistic or combined tools aim to combine the best of actuarial aggregation with an individualized focus (Ansbro, 2010; Kemshall, 2013).

The limits of actuarialism have been much discussed. In brief, these center on the rate of predictive accuracy that can be offered by such risk assessment tools and whether too many false positives are generated (i.e., predictions of risk that then turn out to be false) (Harcourt, 2007; Netter, 2007). It can, however, be difficult to definitely know that false positives are actually false. This has been expressed by Cole (2015):

If we adopt measures designed to prevent murders in the future, we never can know whether our initiatives have in fact prevented murders that would have happened, or whether the murders would not have occurred even if we had done nothing.

The moral and ethical issues of false positives have been much debated (Ashworth & Zedner, 2014; Dennis, 2012; McSherry, 2014a; Wasik, 2012), particularly as such decisions can inform sentencing choices, parole decisions, and the levels of supervision, intrusion, and surveillance that might be applied to an offender. In addition, predictive accuracy tends to fall when the tools concerned are attempting to predict infrequent behaviors in the population as a whole. In addition, aggregated data is applied to individuals, and thus individuals are seen through the lens of a wider group with attendant de-individualization and objectification (Wandall, 2006). Thus actuarialism has been critiqued on the grounds that this both compounds existing inequalities, particularly of race and gender, and creates new ones, with particular groups profiled for interventions and prevention (Fitzgibbon, 2007; Hannah-Moffat & O’Malley, 2007; Harcourt, 2007; Laing & Noaks, 2002).

Actuarialism, Individualization, and Responsibilization

As stated, actuarialism has been closely linked to the social sorting and regulation of populations: within criminal justice, for example, sorting which types of prisoners can safely be released on parole and which cannot. However, it is a paradox of actuarial risk prediction, that while based on aggregated group data, its application is often highly individualized (Harcourt, 2008). After all, we want to know which prisoner to release, not which types, and whether this sexual offender will reoffend harmfully or not. Harcourt describes this as “an individualizing impulse” in which it is:

the specific and particular sexual offender across the street from you, living in that apartment or house that can see through your window that we must identify, document, publicize, and contain and exclude.

(Harcourt, 2008, p. 276, original emphasis)

The nature of the risk (for example, the extent of perceived harm and whether it is a taboo, fearful risk, or not), influences the extent to which risk assessment is characterized by the “individualizing impulse” and the time and resource given over to developing actuarially based risk assessment tools that are then applied to the prediction of the individual’s future risk. This has spawned something of a risk assessment tool development industry since Burgess’s first parole predictor (1928), with notable developments particularly in Canada, the United States, and more recently the United Kingdom (for a review of available tools see Risk Management Authority, 2013). Risk assessment tools have not only attempted to predict recidivism, but, more important, the risk of harmful offending, particularly sexual or violent offending. This has resulted, to some extent, in a twin track approach to risk assessment tools—those focused on predicting reoffending, and those focused on predicting harmful reoffending. The latter has been seen as particularly desirable for categorizing the most dangerous, and in enabling selective incarceration, extended post-custody supervision, and more intrusive community measures. The distinction has also become increasingly important for sorting offenders into risk categories (most usually low, medium, and high), not only for resource allocation decisions but also to more safely determine those who can be safely managed in the community and those who cannot.

Paralleling these developments has been a foregrounding of what Rose (2000) has labeled prudentialism. In brief, individuals are expected to behave prudently, for example, calculating the risks of poverty in our old age and making adequate provision, exercising correct health and lifestyle choices, avoiding becoming the victim of crime. The individual must self-manage risks while the state retreats from costly interventions. In essence prudentialism requires us all to engage in risk calculations. Those who fail to exercise the “right choices” are quickly reframed and excluded. Thus:

Citizens who do not make the desired choice are recast as imprudent and reckless, blameworthy and responsible for their own misfortune. Disadvantage and exclusion are reframed as matters of choice and not of structural processes, crime itself becomes a matter of irrational and imprudent choices. Citizens who fall into the imprudent category are seen as ripe for remoralization and “ethical reconstruction as active citizens”.

(Kemshall, 2003, p. 19)

Hence the development of intervention programs targeting behaviors and cognitions, focused on how to make “positive choices” and engage in “straight thinking” and rational choice, and programs focused on “moving forward and making changes.” Risk assessment tools play a significant role in allocating offenders to such programs, both on the basis of risk and need (James, 2015 for a full review), but also on the basis of motivation to engage and ability to respond (Andrews & Bonta, 2010a, 2010b). Such allocations are made not only on treatment or rehabilitative grounds, but also on economic grounds. Risk assessment plays a role in appropriately targeting interventions according to risk level, but also targeting interventions toward those offenders most likely to make best use of them (Bonta & Andrews, 2007; see Baird, 2009 for a critique). Those willing and able to be “responsibilized” are likely to access treatment programs and interventions. Therefore being “ripe for remoralization” may get you less punishment, or at least a “community punishment” program alternative to the “pains of custody.”

Crime and Risk

Crime is an arena in which risk has increasingly dominated policy responses and to a lesser extent service delivery, particularly in the Anglophone jurisdictions, although there are emerging developments across the European Union and in China (Li, 2015). However, just how extensively this has occurred has been a matter of some debate (Pratt, 2000a, 2000b; Rose, 2000; Sparks, 2000). Evidence for a significant shift was identified by Feeley and Simon in 1992 in their seminal work arguing that crime control strategies in the late 20th century had shifted from a system of penality focused on the transformation and rehabilitation of the individual to a system of penality concerned with the identification, classification, and management of dangerous persons (see also Feeley & Simon, 1994). Actuarial tools and methods are central to the New Penology, and are utilized across various contexts, settings, and organizations across the criminal justice system. However, the sheer spread and difference between actuarial practices within criminal justice has made establishing the extent and pervasiveness of the New Penology difficult.

Feeley and Simon (1992) argued that three penal strategies exemplified the transition to the New Penology: incapacitation, preventive detention, and profiling. Incapacitation uses custody to redistribute risks away from the general population, and for some commentators it marks a move to the “warehousing” of criminals away from their rehabilitation (Rockell, 2009). However, it is possible to currently identify considerable rehabilitative efforts within prisons, including therapeutic prisons for long-serving, high-risk offenders (Brown, Miller, Northley, & O’Neill, 2014). Preventive detention has paralleled incapacitation, particularly the use of preventive detention for high-risk offenders, most notably sexual offenders within many of the Anglophone jurisdictions. Calculations of the future “risk of harm” have been central to the use of preventive detention and “public protection” sentencing (Ashworth & Zedner, 2014), although preventive sentencing can be resisted by the judiciary (Freiberg, 2000) and on the basis that individual rights are infringed (Ashworth & Zedner, 2014). Risk profiling has also been pursued, by parole processes (Copas, Marshall, & Tarling, 1996), policing (Ericson & Haggerty, 1997), and in risk tools (Harcourt, 2007). The use of risk factors has also been central to the identification of further offending, but also more broadly in the identification of high-risk environments and “high-crime” areas (Ainsworth, 2013). However, both individual and geographic profiling has been critiqued on the grounds that it contributes to potentially discriminatory racial profiling (Glaser, 2015; and Epp, Maynard-Moody, & Haider-Markel, 2014, on “police stops”). Thus the three penal strategies identified by Feeley and Simon (1994) as central to the New Penology have themselves been contested and mediated during implementation, and pure actuarial strategies can be difficult to discern in practice. This has resulted in significant debate about the extent to which there is a new risk-based penality. In particular, commentators disagree about the extent to which penal practices are governed solely by risk (Hudson, 2004; O’Malley, 2004a, 2010).

However, there is consensus that the main characteristics of the risk-based penology are:

  • The emphasis upon dangerousness and social regulation and social exclusion of the “dangerous Other.”

  • Preventive sentencing on the grounds of risk, focusing on “the most serious offenders” and attempting both a policy and legislative attempt to provide twin-track sentencing, reserving costly custodial sentences for “high-risk” offenders (most usually defined as violent or sexual offenders).

  • The replacement of clinical and “professional judgement” with formalized, actuarial risk tools.

  • The extension of risk management techniques into non-criminalized areas, for example Anti-Social Behavior Orders and early interventions with families “at risk.”

  • A move toward technological systems of monitoring, surveillance, and control, coupled with a de-prioritization of the rights of individuals.

  • A growth in “populist punitiveness” (Bottoms, 1995) coupled with a demise in the trust the public has for penal experts and professional workers. The “economic rationality” of actuarial penology is often paralleled by or superseded by an “expressive” and symbolic rationality of punishment.

  • Increasing use of partnerships and co-option of the nonstate sector to crime control, and the use of multi-agency approaches in the delivery of criminal justice policy, including increasing use of the private sector. This development is often associated with new, dispersed forms of accountability.

  • A rise in “managerialism” and the use of audit, performance indicators, and the economic language of “value for money.” This is often reflected in narrow concerns with inputs and outputs, efficiency, and fiscal monitoring, with less emphasis upon effectiveness and outcomes. (Adapted from Kemshall, 2003, p. 27.)

The most significant shift has been in the move from a focus on changing individual behavior (i.e., the rehabilitative approach), to a focus on the management of risk distribution and the “management in place” of those segments of the population not amenable to change.

Debating the Risk Penality: Is There a New Penology?

The theoretical claims about the extent and pervasiveness of a risk-based penality have been challenged by a range of empirical studies into actual actuarial practices and how they are deployed on the ground, covering a range of organizational settings, including courts, probation, policing, prisons, and parole. Such studies have demonstrated that risk-based penology is mediated by workers, how they interpret and use risk-based technologies (e.g., risk assessment tools), and the context within which such risk technologies are used. These studies do not support an “inexorable logic of risk” (O’Malley, 2001, 2010). A range of empirical investigations, particularly of frontline workers in probation, policing, parole, prisons, and youth justice, have found that practitioners deploy a range of assumptions, values, and beliefs in their assessments and interactions with service users, and that these can mediate the integrity with which risk assessment tools are used (see, for example, Baker, 2007 on youth justice staff; Deering, 2011 on the ambivalence of probation officers to risk assessment; Hardy, 2014 on the coexistence of welfare and risk concerns in U.K. probation practice; Kemshall, 1998, 2003, 2007 on probation officers and the factors that mitigate assessments of harm; Lynch, 1998 and Werth, 2016 on parole officers’ frontline decision-making). Studies of sentencing decisions have also demonstrated that sentencers resist risk-based sentencing on the grounds of judicial flexibility and the need for case by case discretion (Freiberg, 2000; Stone, 2004). Cumulatively these studies indicate that the grand theoretical claims for a new risk-based penology are overstated, and that “discontinuities” or “paradigm shifts” in penology are not necessarily borne out by the weight of empirical evidence. Rather, differing, and at times competing, penologies coexist (Cheliotis, 2006; O’Malley, 2004b), with practitioners drawing on both as they negotiate the reality of frontline practice and human agency playing a key role in the implementation of penal practices (Cheliotis, 2006; Hannah-Moffat, Maurutto, & Turnbull, 2009; Kemshall, 2010; Maurutto & Hannah-Moffat, 2006). This overlap or “hybridization” of approaches (Hannah-Moffat, 2005; Kemshall, 2008) occurs in other sectors where need and risk concerns have to be balanced by practitioners, for example, social work (Hardy, 2015; Kemshall, 2010), mental health (Titterton, 2005), and youth justice (Briggs, 2013). Thus two important lessons can be gleaned from the New Penology debate: the importance of empirical evidence for theoretical claims made, and that continuities are often as important as discontinuities in understanding practice.

Other issues have constrained the transition to a New Penology of risk. In particular, penal strategies focusing on retribution and the role of “populist punitiveness” have both limited the pure operation of the New Penology. In practice, the delineation between a risk-based penality and a retributive one is not clear-cut. While the economic rationality of risk-based penality and the promise of more effectively allocating resources to the most risky offenders is appealing particularly at a time of austerity, economic risk–based rationality can quickly give way to retributive policies and sentencing. Economic rationality has been tested by public and media campaigns for increased punitiveness for sexual offenders, resulting in what Pratt (2000b) has called “emotive and ostentatious” punishment. Within the United Kingdom, United States, Canada, and Australia in particular this has resulted in a mixed agenda of politicized crime control, and a punitive populism centered on pedophiles (Bottoms, 1995; Nash, 2006; see Kemshall, 2008 for a full discussion). Public, media, and political perceptions that the “punishment should fit the crime” have at times been at odds with the “punishment should fit the risk” (Kemshall, 2009, p. 65).

Risk, Actuarialism, Prevention, and Preemption

The increased penal focus on risk has also resulted in attention to preventive strategies across the whole spectrum of penal interventions (Kemshall, 2009, p. 66). These have ranged from crime prevention strategies aimed at environmentally “managing crime away” to selectively targeting individuals and groups for early interventions or specific programs to preventive sentencing on the grounds of risk prevention. Risk-based actuarial practices have been seen as central to the sorting and profiling of individuals, groups, and areas, and have been popular with politicians and policymakers on the grounds of reduced cost and increased efficiency. Prevention, and more latterly preemption, has become strongly embedded into the crime policy arena on the grounds that prevention and “designing crime out” is more cost effective than post-crime interventions (see the seminal works of Cornish & Clarke, 1986; Ekblom, 2001; and more recently Crawford & Evans, 2012).

The Prevention Agenda: Examples

Two examples from the prevention agenda in crime and justice will be considered: these are environmental crime management, and preventive sentencing.

Environmental crime management gained significant ground in the 1980s, particularly under New Right governments in the United Kingdom and United States. “Designing crime out” was seen as cost-effective, but also as an answer to “incorrigible” offenders and the “intractable” problem of crime, set against a backdrop of growing prison populations and falling resources. This period saw an increase in the use of Closed Circuit TV (CCTV), a “locks and alarms” approach to property security, and design features in cars and open spaces that discouraged crime. In a significant critique of environmental crime management Hughes (1998) argued that CCTV has not always been impactful, or that environmental features merely displace crime to other, less well protected areas. In addition, geographic areas can be stigmatized by such profiling, and existing structural disadvantages of (un)employment and inadequate housing can be compounded. More recently, environmental crime management has elided into social engineering, with programs such as the United States’ Communities That Care initiatives (Hawkins et al., 2008), and million-dollar block initiatives that have involved the mapping of those U.S. blocks that generate the most crime and most imprisoned offenders, with such blocks typically costing one million dollars per year (Justice Mapping Center, 2010). The early intervention program pilot in Nottingham, United Kingdom, followed a similar rationale, with Hilary Armstrong, Minister for Social Exclusion stating that:

Poverty and worklessness, lack of qualifications, poor health, insufficient housing and poor parenting can cast a shadow that spans whole lifetimes and indeed passes through generations. These problems can be multiple, entrenched, and mutually reinforcing.

And some family experiences can make things worse. They can limit aspiration, reinforce cycles of poverty, and provide poor models of behaviour that can have an impact on a child’s development and wellbeing, with significant costs for public services and the wider community. http://webarchive.nationalarchives.gov.uk/+/http:/www.cabinetoffice.gov.uk/media/cabinetoffice/social_exclusion_task_force/assets/think_families/think_families.pdf.

(see also Allen, 2011a, 2011b)

These prevention initiatives have, however, been critiqued on several grounds, not least that they do little to tackle the structural problems associated with such neighborhoods, and that the “social sorting” of actuarial prevention severs any linkage between social problems and crime causation. In addition, austerity and significant public spending cuts have reduced commitment to such programs in both the United Kingdom and the United States (Action for Children, National Children’s Bureau, & Children’s Society, 2016), despite the projected “massive savings” promised by prevention (Allen, 2011b; Rallings & Payne, 2016). Thus the actuarial promise of cost efficiency is mitigated by more immediate austerity concerns.

Preventive sentencing has also gained considerable impetus, particularly across the Anglophone jurisdictions, with some limited extension to Europe (Thomas, 2011). It has been largely reserved for sexual and violent offenders, with less frequent application to persistent offenders. Such sentencing represents a radical departure from traditional sentencing and penal functions in that it sentences offenders for offenses they might commit in the future as well as for those committed in the present. Reliable risk assessment has become central to assessing risk of serious harm that offenders pose to the community. The current and historical position of preventive sentencing has been fully discussed (Ashworth & Zedner, 2014; Thomas, 2011) and will not be repeated here.

The merits and demerits of preventive sentencing have been much debated. The argument has tended to focus on the following themes:

  • The moral and ethical challenges of preventive sentencing, not least on the grounds that future prediction must always be somewhat uncertain (see Cole, 2015). On this basis “future punishment” is seen to be unethical and morally undesirable (Keyzer, 2013; McSherry & Keyzer, 2009; McSherry, 2014a, 2014b). This argument has been proffered for all offenders, but most particularly for young offenders for whom lengthy preventive sentences (and indeed other preventive measures such as sex offender registration) have been seen as morally incorrect (Zimring, 2004).

  • The erosion of individual rights, not just via custodial preventive sentences, but via community-based prevention measures such as sex offender registration, has been seen as problematic (Dennis, 2012; Newburn, 2011; Prescott & Levenson, 2010; Thomas & Thompson, 2012). While “balance” is often urged, in practice public protection and victim rights tend to predominate over those of offenders. However, there have been considerable strides taken to promote increased ethical practice with “high-risk” offenders, notably by Ward, Gannon, and Vess, who apply a human rights framework to those sexual offenders receiving compulsory treatment within the criminal justice system (2009; see also Prescott & Levenson, 2010).

  • The unreliability of risk assessment methodologies has also been seen as a bar to preventive sentencing. In effect, despite significant improvements over time, risk assessment technologies are not sound enough for the purpose of preventive sentencing (McSherry, 2014a). This overlaps with the first bullet point in most arguments of this type, and is also linked to the discriminatory and stigmatizing nature of risk-based social sorting (see, e.g., Harcourt, 2007).

  • Preventive sentencing has also been characterized as “at odds” with traditional jurisprudence, and in some instances has been deemed unconstitutional by courts even where viewed as politically desirable (see Germany, for example; Kelly, 2008; and Hudson & Ugelvik, 2012 on the rule of law). In essence, sentencing utilizing a “precautionary principle” is seen as contrary to prevailing concerns with individual rights and rule of law (Lippke, 2008). Such sentencing is usually reserved for particular types of offenses or offenders (e.g. sexual offenders, terrorists) but has raised more general concerns and spawned an emerging literature on the jurisprudence of the “preventive state” (see Janus, 2006; Krasmann, 2007; Slobogin, 2003, 2011).

  • Policies and legislation are not easily transferable across jurisdictions, with particular issues in the transference from the community protection model of the Anglophone jurisdictions to the individual rights–based countries of Europe. In addition, offense categorizations and penal codes also vary (Davies, 2013; De Pourbaix-Lundin, 2010; Hilder & Kemshall, 2016; Newburn, 2011). This can result in tensions between politicians and the judiciary, and to some extent “backdoor” prevention. For example, the German High Court ruled preventive sentencing was unconstitutional in May 2011, but Germany persists with the notion of preventive treatment and “treatment detention” under mental health legislation (Lieb, Kemshall, & Thomas, 2011; Kelly, 2008). Even within jurisdictions with preventive sentencing, mental health can become a prevention route for “dangerous offenders.” Civil commitment under mental health legislation in the United States has resulted in “psychiatric gulags,” with asylums used as “preventive prisons” (La Fond, 2008, pp. 169–170; see also McSherry, 2014a on a similar point).

Preemption, while not always linked to preventive sentencing, has also attracted similar criticisms (see, e.g., Harcourt, 2007), and is most often associated with profiling. Within the context of criminal justice preemption can be understood as dealing with crime before it is committed (exemplified in the film The Minority Report). Most recently developed with respect to terrorism, it has also been used with respect to sexual offenders (notably “predatory pedophiles”), and in justifying surveillance of persons or communities, for example “stop and search” as part of assertive policing to reduce burglary or drug crimes (for a critical review of preemptive criminal justice see McCulloch & Wilson, 2015). Almost entirely threat driven (including perceptions of threat), preemptive justice has been critiqued on the grounds that it erodes both collective and individual freedoms, with justice increasingly politicized rather than impartial (McCulloch & Pickering, 2009). This has been described as a “pre-crime society,” “in which the possibility of forestalling risks competes with, and even takes precedence over, responding to wrongs done” (Zedner, 2007, p. 261).

Criticisms of preemption have focused on the discriminatory and inequitable impact of assessing, treating, or sentencing an individual through the “group lens” of aggregated data, as this is inevitably distorting. In addition, commentators have argued that profiling can be inefficient due to the inherent flaws in actuarial assessment tools (Harcourt, 2007). Profiling may also be ultimately self defeating. For example, police profiling can result in certain sections of society resisting policing, and even in questioning the fairness and legitimacy of policing itself (e.g., the Black Lives Matter protests in the United States during 2016 in response to police shootings of young black men).

Preemptive criminal justice responses can also produce a disproportionate number of particular groups being processed through the justice system and disproportionate numbers in custody, particularly via selective incarceration (Harcourt, 2007). This critique has been extended by some commentators who argue that preventive sentencing and selective incarceration enables the state to abrogate its responsibility to deal effectively with the causes of crime (Sapir, 2008, p. 260). Preventive sentencing is substituted for structural change, and selective incarceration and preemption become poverty alleviation measures in postmodern industrial societies characterized by insecure work patterns and minimal welfare.

Balancing Risk and Safety

Risk and actuarialism have long histories, and by the end of the 20th century they were inextricably linked, including in the realm of penality and criminal justice. While the evidence for a total paradigm shift is debatable, the role of risk and actuarial practices in criminal justice is significant, particularly within the Anglophone jurisdictions. More broadly, actuarial risk practices have begun to play a role in the social sorting of persons and groups. Within criminal justice this is exemplified by risk tools and practices that seek to “sort” offenders into those who are harmful and those who are not, and those who can be responsibilized and those who cannot. While such practices are often presented as a matter of technique (i.e., mere method), and are also presented as desirable from a public safety perspective, they also carry far-reaching ethical considerations and discriminatory power. They also challenge traditional notions of criminal justice and obfuscate inequalities in social justice.

More recently actuarialism has fueled preemptive responses to crime, particularly, although not exclusively, to terrorism, raising the specter of a pre-crime society predicated almost entirely on threat management at the expense of eroding collective freedoms and rights. This raises important questions about how much risk we are prepared to tolerate to preserve freedom, or how much freedom we are prepared to relinquish to eradicate risk. Neither position can be totalizing or complete. In addition, safety and risk are not in themselves polar opposites. Rather, they are two sides of the same coin, and how they are balanced is a major challenge for contemporary societies. Less risk implies more safety, but also less personal choice over our own actions and less freedom. These considerations raise important questions about the level and types of risk we are prepared to tolerate and at what cost, but also about the “types of risks we wish to avoid and manage, those we deem as bad, and ultimately the type of society we wish to live in” (Kemshall, 2006, p. 88).

Further Reading

For accessible and interesting introductions to risk see:

Denney, D. (2005). Risk and society. London: SAGE.Find this resource:

Mythen, G. (2014). Understanding the risk society. Basingstoke, U.K.: Palgrave Macmillan.Find this resource:

For an overview of the role of risk in criminal justice across the Anglophone countries see:

Bell, E. (2011). Criminal justice and neoliberalism. London: Palgrave Macmillan.Find this resource:

For risk and discrimination see:

Ackerman, A. R., Sacks, M., & Furman, R. (2014, Spring). The criminalization of immigration as a pacification strategy. Justice Policy Journal, 11(1), 1–20.Find this resource:

Web-Based Material

Characteristics of actuarial justice:

Actuarial Justice.

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