The new penology argues that an important new language of penology is emerging. This new language, which has its counterparts in other areas of the law as well, shifts focus away from the traditional concerns of the criminal law and criminology, which have focused on the individual, and redirects it to actuarial consideration of aggregates. This shift has a number of important implications: It facilitates development of a vision or model of a new type of criminal process that embraces increased reliance on imprisonment and that merges concerns for surveillance and custody, that shifts away from a concern with punishing individuals to managing aggregates of dangerous groups, and that affects the training and practice of criminologists.

Sex offenders were once taken to be exemplary of the underlying psychopathological basis of crime. Today their significance is very different. Rather than occasions for testing our modernist faith in scientific rationality, they have become a lesson in the intransigence of evil. Recent laws aimed at addressing sex offenders reflect a transformation in the penal process that has been called the "new penology." This new penology sees crime as a problem of managing high-risk categories and subpopulations, not normalizing individuals to community norms. Kansas v. Hendricks and recent cases upholding the constitutionality of "Megan's Law" open a window into the operation of the new penology and reveal the degree to which its features are largely immune from constitutional limits established by judicial review.

Forty years after the publication of Gresham Sykes's Society of Captives and the second edition of Donald Clemmer's The Prison Community (1958) the incarcerated population in the US, now over 2 million, has grown to an unprecedented size, but paradoxically attention to and concern with the social order of prisons in US academic and political discourse has declined. Just when the experience of imprisonment is becoming a normal pathway for significant portions of the population, the pathways of knowledge that made the experience of incarceration visible are closing. Clemmer, Sykes, and the golden age of US prison sociology they ushered in, helped make prison social order a seemingly knowable object for prison managers and public discourse more generally. The publication 30 years later of John Dilulio's Governing Prisons (1987) can be seen in retrospect as marking a new model of the relationship between expert knowledge, prison management, and the social order of prison. Dilulio's research strategy addressed fundamental weaknesses in prison sociology that had come to be evident in increasingly ungovernable prisons. It also contributed whereby prison social order falls into a dark zone of knowledge and power, integral neither to the production of scientific expertise or governmental programs within the prison. The conjunction of this shift with an enormous expansion in the size of the US prison population is cause for alarm.

No abstract

▪ Abstract  During the 1970s, the enterprise of individual risk assessment in the criminal justice system came under sharp attack from a number of angles, including legal, political, and empirical. A particularly acute site of this controversy was the use of psychological expertise to make individual risk assessments of persons with mental illness who found themselves within the criminal justice system. Successful court challenges to the procedures under which such persons were held in custody as dangerous were followed by empirical research on those persons released. The result was something of a paradigm crisis in the use of individual risk assessment in criminal justice and growing calls for its abandonment. By the 1990s, however, risk assessment was becoming more important than ever to the criminal justice system. This resurgence reflected the political demand for strategies to prevent violent crime and led to significant investments in research and policy development. In the new paradigm of risk assessment, psychological expertise is still valuable but mediated by actuarial and quasi-actuarial methods of identifying the dangerous.

Over the last century there has been significant growth within our society of practices that distribute costs and benefits to individuals based on statistical knowledge about the population. These actuarial practices like insurance premium setting and standardized testing in educational admissions are successful largely because they allow power to be exercised more effectively and at lower political cost. At the same time they generate ideological effects which have the potential to transform the way individuals understand themselves and their groups. In a 1977 case, Los Angeles Water and Power v. Manhart (435 U.S. 702), the United States Supreme Court considered a challenge to the actuarial use of gender in setting employee benefits. The case and the debates it generated illuminate the danger posed by the ideological effects of actuarial practices to our political culture in general, and to traditionally disempowered classes such as women in particular. At the same time it illustrates the limitation of traditional legal rights discourse as a means of resisting these dangers.

To an unprecedented degree American society at the turn of the twentieth century is governed through crime. Nearly three percent of adults are in the custody of the correctional system. Crime and fear of crime enter into a large part of the fundamental decisions in life: where to live, how to raise your family, where to locate your business, where and when to shop, and so on. The crime victim has become the veritable outline of a new form of political subjectivity. This essay explores the complex entanglements of democracy and governing through crime. The effort to build democratic governance after the American Revolution was carried out in part through the problem of crime and punishment. Today, however, the enormous expansion of governing through crime endangers the effort to reinvent democracy for the twenty‐first century.

No abstract