Hard Lessons

Reflections on Governance and Crime Control in Late Modernity

Gordon Tait

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781351156783
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Originally published in 2004. The essays in this engaging book catalogue a wide and varied range of instances where 'things go wrong' in the practices of criminal justice. The contributions document instances where laws, policies and practices have produced unintended consequences of the most deleterious kind, drawing attention to the prison system, 'boot camps', detention centres and specific penal policies such as the 'short, sharp shock', parental penalty and 'three strikes and you're out'. Also examined are policing practices such as 'zero tolerance', 'saturation policing' and punitive laws in the areas of drug use, sex offences and prostitution. It is demonstrated that in each of these cases the objectives of government resulted in the creation of new and unforeseen problems requiring further reform of the criminal justice system. This is a familiar tale characteristic of the modernist impulses of contemporary government based on the notion that crime can be identified, managed and controlled through the application and administration of institutionalised polices and practices. The present culture of 'high crime' - despite a top-heavy apparatus of crime control - appears to indicate the very opposite.

Chapter 1

Modernity and the ‘Failure’ of Crime Control

GORDON TAIT

Introduction: Modernity and Social Governance

Modernity is a very resilient creature. As Clare O’Farrell (1999) observes, since it was first pronounced dead in the 1960s, modernity has, like some operatic diva, not stopped dying since. However, irrespective of the number of texts variously eager to deny its existence (Latour, 1993), reinterpret it (Bauman, 1991), rework it (Beck, 1992), or to change it into something else altogether (Lyotard, 1984) the logic of modernity seems as strong as ever – certainly, at least, when it comes to the management of crime. For those whose memories need jogging, modernity is generally regarded as arriving around the time of the Enlightenment in the 17^th century, and is most frequently characterised as an era dominated by the underpinning belief that, through the use of reason, it would be possible to solve all the problems of humanity. Not only were we now to be responsible for our own collective destinies, free finally of the religious dictates that had previously determined our fates, it would now also be possible, if we only tried long and hard enough, to construct any kind of society we wanted. Social problems, political problems, natural problems … all would eventually circum to the relentless march of reason. With its mantra of truth, objectivity and progress, modernity had arrived, the dark ages had ended, and humanity had come of age.

This was, of course, a lovely, optimistic story, and a story taken up in many different sectors of society. Probably the greatest advocate, and exemplar, of modernist thinking is science. With the exception of a few notable heretics (Popper, 1959; Feyerabend, 1975), science has long been its own best publicist, cordoning off the rights to the production of truth, and anointing itself as the vanguard of society’s inexorable journey into a better future. However, science was not alone in its embrace of modernity. Social governance also came to be shaped as a modernist project. That is, through the judicious management of the conditions of existence of the population, it was now regarded as possible to endlessly improve the wellbeing of the social body in its entirety. Within this system, given social problems are to be identified, addressed and, ultimately, solved. Indeed, Nikolas Rose and Peter Miller (1992) argue that government is, first and foremost, a problematising activity. They suggest that the history of government could be written solely in terms of a history of the problematisations that it seeks to address. Thus, various sites of failure are identified, and these provide the focus for the countless programs of intervention characteristic of contemporary government: ‘…government reports, white papers, green papers, papers from business, trade unions, financiers, political parties, charities, academics proposing this or that scheme for dealing with this or that problem’ (Miller and Rose, 1990: 4). The most important issue here is that the entire modernist governmental project is premised upon the fundamental assumption that reality is actually programmable, and that it is a domain subject to rules, norms and processes that can be acted upon and improved by authorities. However, as Rose and Miller (1992: 191) point out:

Whilst we inhabit a world of programmes, that world is not itself programmed. We do not live in a governed world so much as a world traversed by the ‘will to govern’, fuelled by the constant registration of ‘failure’, the discrepancy between ambition and outcome, and the constant injunction to do better next time.

But surely if modernity were to have any purchase at all, there would exist evidence not only of the possibility of a viable (although not necessarily utopian) end-point, a time when the most important questions of social management had been asked and answered, but also of evidence that the social body responded in precisely the way that the social planners had envisaged. Perhaps, in order to address these issues, it would be wise to examine the work of some of modernity’s more interesting critics – such as Michel Foucault, Anthony Giddens and Ulrich Beck – and see where their arguments leave our understandings of social governance, and in particular, our understandings of the dominant model of crime control, and its apparent ongoing failure.

Foucault and the Rise of Normalising Detention

In contrast to the seamless, teleological logic of modernity, Foucault makes no attempt to weave his theories into a single all-encompassing account of society. His understanding of the social world is not based upon a totalised theory, operating within an unbroken model of progress, rather his work describes societies characterised by a fragmented and discontinuous series of transformations, supported and augmented by a multiplicity of different knowledge, practices, and truths. Contrary to the position adopted by most social theorists, he suggests that power is not a coercive entity, exerting a global and homogeneous influence across all the elements of social life. Instead, power also acts in diverse ways in different locations, exercised through the practices and technologies of government. These technologies of government institute and arrange new ways of understanding and new codes of behaviour. Power does not constrain and compel, primarily it brings things into being – new practices, new identities and new forms of social management.

Foucault (1977) applies all these arguments in his most famous text, an analysis of the greatest of all modernist systems of crime control: Discipline and Punish: the Birth of the Prison. He famously begins this text with a gruesome description of the execution of Damiens, the regicide in 1757, which he then contrasts with the timetable for the running of a prison from some eighty years later. There were a number of purposes behind this juxtaposition, but the main point of interest here is how Foucault sets out the central features of three different regimes of punishment, and how one in particular – normalising detention – came to be regarded as the only appropriate and effective way of dealing with wrongdoers. By the mid-eighteenth century, the practice which had long been the centrepiece of European systems of punishment – symbolic public torture/execution in the name of the sovereign – was coming under challenge. It is at this point that teleological arguments about human progress are normally introduced: of course it was just a matter of time before the barbarity of this regime would be rejected, of course more human methods of punishment would prevail, and so on. In fact, the evidence suggests the reasons for the shift are far more complex, and are mostly based around much broader changes in the way society was to be governed. Foucault (1991) argues that until the early eighteenth century, government remained yoked to the imperatives and interests of sovereignty, and it was only when the notion of ‘the population’ eventually became the new raison d’etre of government, involving the emergence of governmental apparatus and the development of new techniques for amassing knowledge about the state, that alternative methods of dealing with social transgression became thinkable.

This is not to say that humanism had no role to play in the eventual demise of the model of sovereign torture. Indeed, a second paradigm of punishment was championed by a number of humanist reformers who, around the time of the French Revolution (ironically, given the form and function of the subsequent Reign of Terror), sought to reduce the possibility of the excessive and arbitrary exercise of sovereign power. Not only were punishments to be fixed, measured and transparent in their application, but also the logic behind the punishment was no longer to be the symbolic reinforcement of the power of the king. Rather, as Dreyfus and Rabinow (1982: 148) neatly summarise:

The chief theoretical justification lay in the theory of the social contract, that society is made up of individuals who have come together and through a contractual arrangement formed a society. Crime became not an attack on the body of the sovereign but a breach of contract in which society as a whole was the victim. Society therefore had the right to redress this wrong, and punishment became the obligation of society.

The central mechanism of punishment was to be public works – road gangs, treadmill operators, field labourers – where criminals were seen to pay their dues to the community at large, both physically and symbolically, a fact Foucault (1977: 109) notes when he states that ‘the convict pays twice, by the labour he provides and by the sign he produces’. In the final analysis however, this ‘semio-technic’ regime of punishment ultimately failed, as sovereign torture had before it, not because it fell victim to the inevitable march of reason and the humanist, trans-historical superiority of incarceration, but for an aggregation of reasons to do with the exercise of power in the wider society, as well as political and social contingencies of late eighteenth century life, such as the rise of Napoleon and the refusal of criminals to play their publicly penitent roles properly.

All aspects of this model were not to be lost to history. Some elements, such as the belief in the possibility of reforming the criminal came to constitute one of the domain assumptions of the third paradigm: normalising incarceration. As previously mentioned, it is this model of punishment that we all take so much for granted. However, as Foucault points out, imprisoning offenders is a far more complex and governmentally significant process than the simple removal of the socially undesirable from public circulation for fixed periods of time. Foucault’s (1977) arguments here are now well known. He contends that architectural and organisational changes within prisons resulted in a series of new possibilities regarding the role such institutions could play in the modification of human conduct, in that it was now thought to be possible to enlist prisoners in the process of their own reformation. Intrinsic to the success of this disciplinary mechanism was to be the dual strategies of individuation and normalisation. Each prisoner was now to be allocated their own cell, each knowing their own space and, in turn, being known. Likewise, such disciplinary societies were also to be characterised by the taking charge of the time of individual existences, not simply extending to the rigorous demarcation of the working day, but also organisation of time into successive or parallel segments. Within these temporal and special frameworks, and in association with new administrative techniques such as the keeping of extensive individual records, criminals could not only have their characteristics and conduct tightly monitored, but also, in theory, they could be normalised in ways which were previously inconceivable.

What the Contemporary Prison says about Modernity

Foucault raises three important points here, all of which are relevant to traditional arguments concerning modernity. The first is that the final model outlined above does not constitute an inevitable teleological advancement in both social governance in general, or in the regulation of criminals in particular. In many ways, Discipline and Punish acts as an effective counterpoint to what is arguably the dominant, modernist position on prisons: that they are the logical historical endpoint of the humane punishment of wrongdoers. After all, we no longer expect punishments which inflict pain on the body, or which are carried out in public, or which permit members of the public to join in. As John Pratt (2000; 184) points out: ‘Punishments targeted at the human body, no matter how meticulous the level of surgical skill that they involved, progressively faded from the legitimate array of sanctions in modernity’. Punishments are now to be carceral, out of the public gaze, and administered by trained professionals, and whether or not this shift is an example of Norbert Elias’ ‘civilising process’, as Pratt concludes, or whether its origins lie elsewhere, one thing that does seem certain: it all could have been very different. That is, we have not ended up at this point due to the inexorable and inevitable logic that prisons are the best way of dealing with significant forms of social transgression. Rather, all the evidence suggests that the modern prison is simply an historical contingency, the product of a set of political, cultural, technical and administrative accidents and alterations that, over a period of two hundred years, resulted in the institution we now take so readily for granted as a natural part of our social landscape.

The second point is that this new form of governance had implications far beyond the boundaries of the prison. In piecemeal ways, it became the model for a number of other important social institutions. For example, schools also soon adopted this system of organisation, with it quickly becoming the norm for all classrooms. Placed within an identical special and temporal grid, and the focus of similarly extensive recordkeeping, pupils can readily have their particular characteristics, skills, capacities and weaknesses identified and be immediately subjected to intervention and normalisation. This form of governance then spread out of institutions such as the prison, the school and the hospital, and once again, in a piecemeal and contingent manner, gradually came to be the dominant mechanism and rationale of governance for our entire society. To reiterate: these were largely unintended and unforeseeable outcomes that sprang from an initially unrelated set of changes occurring elsewhere in the social body.

The third point is that this paradigm of crime control now represents, at least in theory, probably the most perfect of all modernist systems. After all, here is an institution which purports to tackle arguably the most significant problem within the social body: dealing with those who break the rules. In what Hacking (1982) referred to as ‘an avalanche of printed numbers’, more and more statistical information was being gathered as the 19^th century progressed about almost every conceivable aspect of existence, information which succeeded in fleshing out the ‘inherent’ characteristics, features and categories of the population. No longer was crime control to consist of a simple dichotomy between those who obeyed the law and those who did not, with transgressors facing generally the most severe and terminal of punishments. Instead, incarceration could be used as a vehicle for complex and integrated forms of social management, based largely upon various new taxonomies of crime, the various components of which could be addressed and managed in their own way, most frequently by varying lengths of time in prison. Furthermore, not only did incarceration promise the finely-graded governance of criminal conduct, it also held out the promise of the reformation of the criminals themselves – a true modernist, utopian vision. However, this wondrous dream has little to do with the reality of the form and function of contemporary prisons. As Foucault (1977: 271-2) notes:

If the law is supposed to define offences, if the function of the penal apparatus is to reduce them and if the prison is the instrument of this repression, then failure has to be admitted. Or rather – for in order to establish it in historical terms, one must be able to measure the effects of the penalty of detention on the overall level of criminality – one should be surprised that for the past 150 years the proclamation of the failure of the prison has always been accompanied by its maintenance.

Many writers would not be the least bit surprised by the apparent failure of one of modernity’s premier institutions. Foucault aside, probably the most common response to arguments about modernity is to assert that it has been eclipsed by a new form of social and intellectual (dis)order: that of post-modernity. By rejecting the grand narratives of modernism, postmodernism and its champions – most significantly Jean-Francois Lyotard (1984) and Jean Baudrillard (1993) – sought to describe a world now characterised not by truth and progress, but instead by the production of many different truths, and by the belief that history lacks the directionality, or unity, to speak of progress, when really all that can be claimed is change. The post-modern universe is one of floating signifiers and radical uncertainty, and within this conceptual framework, the logic of a singular, centralised system of crime control becomes, at very best, an anachronism, or at worst, an illusion and a pointless waste of time.

Needless to say, t...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of Contributors
• Introduction
• Chapter 1 Modernity and the ‘Failure’ of Crime Control
• Chapter 2 Governing ‘Fear of Crime’
• Chapter 3 The Control of Drugs in New Zealand
• Chapter 4 Korrectional Karaoke: New Labour and the Zombification of Youth Justice
• Chapter 5 Expect the Unexpected: DNA, Guilt and Innocence
• Chapter 6 Parental Restitution: Soft Target for Rough Justice
• Chapter 7 In Pursuit of the Responsibilised Self: Boot Camps, Crime and Punishment
• Chapter 8 The Political Resonance of Crime Control Strategies: Zero Tolerance Policing
• Chapter 9 Good Prostitutes and Bad Prostitutes: Some Unintended Consequences of Governmental Regulation
• Chapter 10 Unintended Consequences or Deliberate Racial Hygiene Strategies: The Question of Child Removal Policies
• Postscript: Which Way is Up?