Actuarial Logic in Criminal Justice - Article Example

The Implications of a Shift towards an ‘Actuarial Logic’ (or Probability Risk) in Criminal Justice Name Course University Date Introduction The traditional view, and one in which many still subscribed, is that most crimes are wrong because they are contrary to morality. Thus, an offender must be punished in accordance to the gravity of the crime he commits. The severity of the law, however, is tempered by the positivist theory of criminology, which has dominated the criminal policy in the last century, in which it is believed that internal and external factors influence an offender to commit an offence. Under this theory, society and the criminal justice system are willing to forgive the offender for his moment of weaknesses if he leaves his erroneous ways behind. Thus, the primary goal of the criminal justice system was to assist the person through implementing a rehabilitative type of penology. Towards the turn of the century, however, a new penology referred to as actuarial justice began to emerge and has been making an impact in the criminal justice systems of the Western world. The most salient characteristic of this new penology is the reliance on actuarial practices that have long underpinned the insurance and financial industries. The immediate impact of this new type of justice is the shift from a rehabilitative goal to incapacitation and risk-based management of groups of offenders. It is believed, however, that a full-blown actuarial justice in the Australian context will be hindered by the country’s unique social and political realities. Actuarial Logic/Probability of Risk: Background Actuarial logic as applied in the criminal justice context is descriptive of a theoretical justice model in which concepts and methods common in actuarial mathematics are adopted and employed. Actuarial mathematics underpins the fields of insurance and financial securities. In the insurance industry, for example, actuarial mathematics is employed to generate insurance percentage rates that provide the basis for premiums that cover potential losses or expenses. In the justice system context, actuarial techniques may be applied to assess the potential risks of offenders, treatment programs, policing and crime prevention techniques. The foundation of actuarial logic is rooted in the development of statistics in the mid-19th century. From viewing disasters and catastrophes as misfortunes, these events became a focus of pattern observations applicable to people on a large scale. Profiles such as birth and death rates, accident patterns, unemployment rates and the like became the new realities (Robert 2004). The Trend towards Actuarial Logic/ Probability of Risk in Criminal Justice The 1980s saw a growing demand for accountability and rationality in the field of corrections, which corresponded with the emergence of a new ‘risk’ society – a society that questioned the merit of traditional justice that punished individuals on the basis of moral-based concepts of right and wrong. Jonathan Simon was one of those who observed that assessments of risks made on the basis of actuarial logic seemed to be slowly impacting society (Drake et al 2012, p. 116), noting that the application of actuarial tools and insurance approaches in other aspects of life, such as criminal justice, tended to “objectify and aggregate individuals” (Kemshall 2003, p. 28). Feeley and Simon (1984) subsequently coined the term ‘actuarial justice’ to describe an emerging phenomenon that was becoming a trend in the criminal justice system, particularly noting that actuarial justice has become prevalent among criminal justice practitioners and researchers, but has not yet seriously seeped into the system as to bring about a universal approach towards crime and crime policy (Feeley and Simon 1992). Nonetheless, there are areas in criminal justice where actuarial techniques are definitely being employed. For example, genetic screening for risk offending are being used to “identify, treat and control individuals predisposed to impulsive conduct” (Rose 2000, p. 5). Thus, genetic results can be used to justify the requirement of submission to certain treatment as a condition for non-custodial sentence or pre-emptive interventions in the name of public safety (Rose 2000). The Implication of the New Trend The evident effect of the rise of the new penology, which has become of significant importance at the turn of the century, is the shift from a rehabilitative direction in penology to one that stresses mandatory sentences and enhanced sentencing for certain classes of offenders. Prior to the rise of new penology, individualisation of offending determined the kind of sentence or treatment imposed on an offender. Thus, the individual offender was at the centre of the determinative process that called for the diagnosis of his unique conditions and background that led him to offend and the adoption of treatment and sentence best suited to his case. However, in the new penology crime categorisation is the new focus and incapacitation, rather than rehabilitation, is the new goal (Harcourt 2003). The rise of this new penology gives birth to a corresponding change in the discourse, objectives and techniques of controlling crime (Feeley and Simon 1992). According to Slingeneyer (2007), these changes have even impacted the way crime is being viewed. Crime is now stripped of its moral implications and is seen as a normal occurrence despite it posing grave danger to society. In addition, crime has become more of a technical problem rather than an individual or social problem. Instead of viewing it as a voluntary act, in which case the internal factors that pushed the criminal to commit the act required changing, or structural, in which case the external factors that influenced an offender to commit a crime needed to be altered, the new penology sets its sights in neither of these two. Instead the new penology concerns itself with the act and its effect and the management of groups. In other words, the traditional view of underscoring internal or external factors that influenced an offender to commit the crime is not the primary concern of the new penology. Rather, the goal of the new penology is to control and minimise the level of deviance and recidivism and this it does through systemic management (Slingeneyer 2007). Back in 1988, Jonathan Simon had written about the negative impact of actuarial logic on ideology although admitting the benefits that they bring. Actuarial techniques bring about a more efficient use of power because it allows the targeting of subjects in a precise and accurate manner. In marketing, for example, actuarial strategies categorise certain groups of people, i.e. black urban professionals, and employ marketing strategies that would meet the needs of such class of people. In this sense, actuarial techniques become a vehicle to deploy social practices. The deployment of a set of social practices to a specific group of people changes that group’s perception of themselves and their sense of belonging, and thus, alter their ideological perspectives. The danger in this, according to Simon, is that people lose their political and moral identities without their political rights formally suspended (Simon 1988). It is, however, believed that if there is an institution that can provide a resistance against the potent, but surreptitious, power of actuarial logic it would be the law itself. The law itself is a strong ideological weapon that can prevent the disempowerment or negative ideological impact of actuarial practices as shown in the case of City of Los Angeles Department of Water and Power v. Manhart, 435 U.S. 702 (1978). In that case, the female employees of a Los Angeles utility challenged its policy of requiring female employees to pay higher contributions to its retirement plan on the grounds that women have longer life span than men. The challenge was brought under Title VII of the Civil Rights Act of 1964, specifically on antidiscrimination. The Supreme Court held that the use of gender as an actuarial variable in determining rates of contribution as discriminatory and, therefore, unconstitutional. This decision, according to Simon, proves that the law provides a strong vehicle of resistance against social practices that have been shaped and moulded by actuarial strategies (Simon 1988). Indeed, Simon’s observation with respect to the law as a vehicle of resistance to actuarial practices in the criminal justice system has been validated in several cases, particularly in the Australian context. In Williscroft [1975] V.R. 292, rather than rely on scientific analyses to determine risk the Court chose judicial common sense, which it referred to as instinctive synthesis, to render the appropriate sentence on the accused. In Young [1990] VR 951, the Court referred to such practices as without authority and legal basis and can potentially lead to errors and injustice. In Attorney General v. David (No. 6823 of 1990, 15 November 1991, unreported), the Court held that scientific methods of determining risks, such as actuarial techniques, are neither superior nor inferior to other methods and, thus, rather than rely on them the Court resorted to the practical assessment of risk to public safety (cited Brown 2000). A concept that became significantly and singularly important with the rise of the new penology is ‘risk,’ which has displaced the concepts of dangerousness and individuality. This is most noticeable in its association with the ‘dangerous offender’ where risk has become the underpinning principle in dealing with this group of people rather than conceptualising more effective responses (Hannah-Moffat 2013). Risk assessment also entails the focus on ‘heterogeneous’ factors, or elements common in a group of people that can justify their classification as a risky class, in effect, marginalising or completely ignoring the individuality of the members of such class. Thus, risk classification of offenders becomes the qualifying factor in the intensity or type of delivery of treatment and penal management given to such class, rather than the individual offender’s individual characteristics themselves. In Australia, this systemic group management approach on the basis of risk classification was early on illustrated by sex offender monitoring and preventive confinement. In the preventive confinement approach, a sex offender can be handed an indefinite sentence on the justification of public protection. Thus, although a sex offence may just merit an offender a specific number of years, that sentence can be extended under the preventive confinement principle. In Kable v Director of Public Prosecutions (NSW) [1996] 189 CLR 51, the underpinning law was held as unconstitutional after a sex offender died in prison while serving an extended sentence. However, the era of post-sentence confinement for sex offenders began through Sexually Violent Predators laws after the US adopted this approach and it was not long after that Australia followed suit (Brown 2008). O’Malley (2002), however, rejected the suggestion that Australia has completely shifted to a risk-based approach in the criminal justice system characterised by actuarial logic and techniques. Unlike in the US, actuarial justice has negligible impact in Australia. In addition, Australia rejected the war on drugs that kindled actuarial justice in the US because its drug problems were of a lesser scale than that of the latter allowing smaller forms of approaches, such as treatment, possible. It is also suggested that the established political system in Australia in itself poses a hindrance to the full-blown adoption of actuarial justice as its hybrid social-democratic institutions tend to include rather than exclude (O’Malley 2002). Conclusion The rise of the actuarial justice in many Western countries, particularly the US, manifests an evident shift from the way crime and offenders are being viewed. There are benefits to this new type of justice, but its negative impact seemed substantial. The immediate impact of the new type of justice is to change the primary goal of the criminal justice system away from a rehabilitative aim to incapacitation grounded on a risk-based assessment. More importantly, this new penology can potentially, in a most surreptitious manner, change the way people view offenders reducing them to mere variables rather than human individuals. In this sense, this new penology may seem to bring more negative than positive impact not only to the justice system, but to society as well. References Brown, M 2000, ‘Calculations of risk in contemporary penal practice’, in M Brown and J Prasst (eds.), Dangerous offenders: Punishment and social order, London: Routledge, pp 93-108. Brown, M 2008, ‘Risk, punishment and liberty’, in T Anthony and C Cunneen (eds.), The critical criminology companion, Sydney, AU: Hawkins Press. Drake, D, Muncie, J and Muncie, L 2012, Criminal justice: Local and global, Routledge. Feeley, M and Simon, J 1992, ‘The new penology: Notes on the emerging strategy of corrections and its implications’, Criminology, vol. 30, n0. 4, pp. 449-474. Hannah-Moffat, K 2013, ‘Actuarial sentencing: An unsettled proposition’, Justice Quarterly, vol. 30, no. 2, pp 270-296. Harcourt, B 2003, ‘The shaping of chance: Actuarial models and criminal profiling at the turn of the twenty-first century’, The University of Chicago Law Review, vol. 70, pp 105-108. Kemshall, H 2003, Understanding Risk in Criminal Justice, McGraw-Hill Education (UK). O’Malley, P 2002, ‘Globalizing risk? Distinguishing styles of ‘neo-liberal’ criminal justice in Australia and the USA’, Criminal Justice, vol. 2, no. 2, pp 205-222. Robert, D. 2004, ‘Actuarial justice’, Bosworth, M. (ed.) in Encyclopedia of Prisons and Correctional Facilities, London, UK: SAGE Publications, pp. 10-13. Rose, N 2000, ‘The biology of culpability: Pathological identity and crime control in a biological culture’, Theoretical Criminology, vol. 4, no. 1, pp 5-34. Simon, J 1988, ‘The ideological effects of actuarial practices’, Law and Society Review, vol. 22, no. 4, pp 771-800. Slingeneyer, T 2007, ‘The new penology: A grid for analyzing the transformations of penal discourses, techniques and objectives’, Penal Field, https://champpenal.revues.org/7798 [Accessed 6 September 2015]. Read More