The Criminal Justice Policy - Essay Example

How Did A Modernist Belief in Science Inform Criminal Justice Policies of the Twentieth Century? The turn of the twentieth century showed a remarkable shift in the ideals and basis upon which approaches to criminal justice policy were approached. This shift was arguably the result of the increasingly-emerging problems brought by the preceding classical approach to criminal justice and punishment. Where this deterrence based approach was seemingly a more philosophical appeal to the individual’s sense of free will and his participation (or not) in the social contract, it quickly became apparent that the path was paved for irrational sentencing practices and the disregard for extenuating circumstances. While this is an extremely basic round-up of the problems caused under the classical school of thought, it is nonetheless sufficient to progress to how it created the road for change and caused the shift towards the scientific approach to criminal justice. Suffice it to say that the classical approach to punishment being proportionate to the crime, just what aspects of the crime it was to be proportionate to caused a great deal of confusion within the world of criminal justice, and the complexities of free will it overlooked caused it to be doomed from the start. The emergent approach characteristic of the twentieth century was based on a more modern appeal to science; namely its basis on calculations of risk, and removing such risks from society. Criminal justice thus began to build its basis on the science of prediction, based on empirical evidence. This approach began with positivist penologists such as Lombroso (1911), who analysed the biological aspects and physical traits of criminals to formulate a structure of which types would possess criminal tendencies. Enrico Ferri (1910) drew on social factors to broaden Lombroso’s framework, and thus the trend began of scientific analysis and empirical proof as a basis of criminal policy. As the call for social organisation and political legitimacy emerged and became more important, so did the tendency to see punishment as a “complex social function” (Foucault 1977: 23). Punishment was seen as a social element separate from it societal structure, and instead of being a negative practice to deprive and withdraw from society, it became “linked to a whole series of positive and useful effects” (Foucault 1975:29). Men of a society began to be viewed as scientific data, yet it goes much deeper than this. More philosophical questions emerged, based on what were considered at the time to be the nature of knowledge. These more profound philosophical enquiries explored the reasons as to why we considered what we believed to be true. It asked how punishment could rehabilitate, and not only upon which beliefs such elements were based, but also what shaped such beliefs from the outset. David Garland urged we realise that our social practices which formed a basis for our culture as a whole formed the very meaning behind our social actions (Garland 1990: 251). And so the focus moved from simple penal policy to social justice and moralistic education. Indeed, empirical studies even went as far as to find flaws in the utilisation of deterrence as a penal policy, for it was found that “few of the empirical studies have any power to distinguish deterrence from incapacitation” (Levitt 1998:1158). On a more specific level, the scientific approach sought to place members of a society into groups based on certain factors in order “to predict risk of future offending” (Cunneen 2008: 299). These factors included previous history of offences, types of offences committed, as well as social factors such as unemployment and educational status. The purpose of these statistical analyses was to uncover “those who offer the greatest risk to ‘our’ security” (Cunneen 2008: 299). We can thus see a clear shift of the focus point from the punishment ‘fitting’ the crime to achieve deterrence to the prevention of crime based on statistical data , the latter being much more flexible in its attribution of punishment. Indeed, the modernist scientific approach was radically different from that of the classical school in that it allowed the punishment of crimes, yet the basis of this punishment was based on the underlying causes of crime rather than making the punishment fit the severity of the crime to deter others. While classicism sought to deter, modernism sought to prevent in a different manner completely; without threat of punishment, and without the dubiously evasive utilitarian approach that was arguably its demise. Yet, while it is easy to understand how the modern scientific approach to penal policy differed from its predecessors, it is somewhat less simple to assess as a potential success within its own right. It is true that the modern approach sought to reduce crime through the calculation of risk factors and thus prevention. It employed incapacitation and rehabilitation as a form of ‘punishment’, yet is it wise to narrow the focus of penal policy down to such constricted elements? Has it really been proven possible to ‘predict’ which characteristics will result in criminal tendencies, and thus employ statistical data to prevent recurrences? Can science cope with the vast array of crimes, socio-economic factors and specific circumstances of each criminal case? Can the boundaries of punishment keep up with the world of crime in this manner? It has been argued that one idea of crime and penal policy has been replaced with another, simply in order to keep up with the developments in technology (O’Malley 1992). This argument does evoke some strengths when one is to think of exactly how far scientific research can – and should be permitted – to progress in the interests of predicting and thus preventing crime. Indeed it can be put forward that crime exists, it always has and it always will – perhaps the way in which we deal with it and punish offenders will forever remain an aspect of debate and change. Simply because we place a different label upon, or theory behind, the punishment does not mean that the punishment itself changes. Simply put: a crime is committed, the offender is punished. Does the underlying theory really go as far as to make a noticeable difference? More importantly – can we really prevent crime to a noticeable degree, or is it just that society incarcerates more criminals and in turn reduces the chance of reoffending? An avid modernist would reply that the difference is that the scientific approach seeks to “deal with the underlying causes of crime and recognises the complex social, economic, and cultural factors that contribute to crime and victimisation” (CSC 2003: 12). Indeed, there is at least some form of plausibility, if not hopeful aspiration in the approach that seeks to achieve such concepts – but is it just another starry eyed concept such as classicism was? If we are to punish the offender, how can the ascertainment of the underlying causes serve to contribute to that punishment in order to prevent future offending? Indeed, many may respond to incarceration – as they may have under the classical approach – and many may leave rehabilitation a new man. But it seems a little ambitious to place every man in the group that simply needs rehabilitative ‘treatment’ – and empirical evidence can only go so far as ‘evidence’. There are always exceptions, and there are always sideline factors which may also be central factors. However, at the very least, the practice of penal policies based on empirical evidence has a much sturdier basis than the seemingly whimsical bases of the classical approach. It was arguably inevitable that technological advances would take every aspect of society in its wake; perhaps this is not such a disadvantageous point. If O’Malley was correct in his criticism, at least the switch from one idea to the other has resulted in a shift towards visual data and empirical facts and this arguably leaves the criminal justice system open to less manipulation and subjective application that the classical approach proved to be. If we no longer believe in what we once believed in, perhaps statistics and empirical evidence are the last hope we have left, particularly in the realm of crime and penal policy. Bibliography Correctional Services of Canada (CSC). 2003. Estimates Part 3 - Report on Plans and Priorities. Ottawa: Correctional Service of Canada Cunneen, Chris. 2008. Understanding Restorative Justice Through The Lens of Critical Criminology in Cunneen, C. and Anthony, T. (eds) The Critical Criminology Companion. Annandale: Hawkins Press. Ferri, Enrico. 1910. The Positive School of Criminology: Three Lectures Given at the University of Naples. Available at: http://www.gutenberg.org/ebooks/10580 Foucalt, Michel. 1977. What is Enlightenment? in Rabinow, Paul (ed.) Ethics: Subjectivity and Truth. New York: The New Press. Foucault, Michel. 1975. Surveiller et punir: Naissance de la prison. Paris: Editions Gallimard. Garland, David. 1990. Punishment and Modern Society. Chicago: University of Chicago Press. Levvit, Steven. 1998. Juvenile Crime and Punishment. Journal of Political Economy. December 1998:1156–85. Lombroso, Cesare and Lombroso-Ferrero, Gina. 1911. Criminal Man, According to the Classification of Cesare Lombroso. New York: Putnam; (1972) Montclair, N.J.: Patterson Smith O’Malley, P. 1992. Risk, Power and Crime Prevention. Economy and Society 21:252-275 Read More