#technocratic control

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The New Penology: THE NEW OBJECTIVES

“The new penology is neither about punishing nor about rehabilitating individuals. It is about identifying and managing unruly groups. It is concerned with the rationality not of individual behavior or even community organization, but of managerial processes. Its goal is not to eliminate crime but to make it tolerable through systemic coordination. 

One measure of the shift away from trying to normalize offenders and toward trying to manage them is seen in the declining significance of recidivism. Under the old penology, recidivism was a nearly universal criterion for assessing successor failure of penal programs. Under the new penology, recidivism rates continue to be important, but their significance has changed. The word itself seems to be used less often precisely because it carries a normative connotation that reintegrating offenders into the community is the major objective. High rates of parolees being returned to prison once indicated program failure; now they are offered as evidence of efficiency and effectiveness of parole as a control apparatus.

It is possible that recidivism is dropping out of the vocabulary as an adjustment to harsh realities and is a way of avoiding charges of institutional failure. Nearly half of all prisoners released in eleven of the largest states during 1983 were reconvicted within three years. In 21 of the 48 states with adults on parole supervision in 1988, more than 30% of those leaving parole were in jail or prison on new criminal or parole-revocation charges; in 8 of them more than half of those leaving parole were returned to confinement (including a spectacular 78% in California and 70% in Washington). However, in shifting to emphasize the virtues of return as an indication of effective control, the new penology reshapes one's understanding of the functions of the penal sanction. By emphasizing correctional programs in terms of aggregate control and system management rather than individual success and failure, the new penology lowers one's expectations about the criminal sanction. These redefined objectives are reinforced by the new discourses discussed above, which take deviance as a given, mute aspirations for individual reformation, and seek to classify, sort, and manage dangerous groups efficiently.

The waning of concern over recidivism reveals fundamental changes in the very penal processes that recidivism once was used to evaluate. For example, although parole and probation have long been justified as means of reintegrating offenders into the community, increasingly they are being perceived as cost-effective ways of imposing longterm management on the dangerous. Instead of treating revocation of parole and probation as a mechanism to short-circuit the supervision process when the risks to public safety become unacceptable, the system now treats revocation as a cost-effective way to police and sanction a chronically troublesome population. In such an operation, recidivism is either irrelevant or, as suggested above, is stood on its head and transformed into an indicator of success in a new form of law enforcement.

The importance that recidivism once had in evaluating the performance of corrections is now being taken up by measures of system functioning. Heydebrand and Seron have noted a tendency in courts and other social agencies toward decoupling performance evaluation from external social objectives. Instead of social norms like the elimination of crime, reintegration into the community, or public safety, institutions begin to measure their own outputs as indicators of performance. Thus, courts may look at docket flow. Similarly, parole agencies may shift evaluations of performance to, say, the time elapsed between arrests and due process hearings. In much the same way, many schools have come to focus on standardized test performance rather than on reading or mathematics, and some have begun to see teaching itself as the process of teaching students how to take such tests.

Such technocratic rationalization tends to insulate institutions from the messy, hard-to-control demands of the social world. By limiting their exposure to indicators that they can control, managers ensure that their problems will have solutions. No doubt this tendency in the new penology is, in part, a response to the acceleration of demands for rationality and accountability in punishment coming from the courts and legislatures during the 1970s. It also reflects the lowered expectations for the penal system that result from failures to accomplish more ambitious promises of the past. Yet in the end, the inclination of the system to measure its success against its own production processes helps lock the system into a mode of operation that has only an attenuated connection with the social purposes of punishment. In the long term it becomes more difficult to evaluate an institution critically if there are no references to substantive social ends.

The new objectives also inevitably permeate through the courts into thinking about rights. The new penology replaces consideration of fault with predictions of dangerousness and safety management and, in so doing, modifies traditional individual-oriented doctrines of criminal procedure. This shift is illustrated in US. v. Salerno, which upheld the preventive detention provision in the Bail Reform Act of 1984. Writing the opinion for the Court, then Associate Supreme Court Justice William Rehnquist reasoned that preventive detention does not trigger the same level of protection as other penal detentions because it is intended to manage risks rather than punish. While the distinction may have seemed disingenuous to some, it acknowledges the shift in objectives we have emphasized and redefines rights accordingly.”

- Malcolm M. Feeley & Jonathan Simon, “The New Penology: Notes on the Emerging Strategy of Corrections and Its Implications.” 30 Criminology 449 (1992), pp. 455-457.