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The new penology is a perspective that plots the rise of actuarial justice in understandings of crime and criminal justice. This model views crime as now normal and no longer a site for social reformation. Instead, the best that can be expected is the control of crime through techniques based upon technology and statistical calculations that enhance the identification and management of “high-risk,” “dangerous,” or unruly groups. This approach marks the rise of technocratic forms of knowledge no longer concerned with the rehabilitation or transformation of individual offenders but rather with the production of aggregate categories and classification schemes that locate and track actual and potential offenders. Mass incarceration and the warehousing of offenders become primary ways of managing risk in criminal justice simply by removing potentially dangerous individuals from society for long periods of time. This logic is argued to be a major influence on criminal justice agents, institutions, and policies where risk management and actuarial discourses, its proponents argue, have diffused throughout the justice system and into the community.

Fundamentals, Critiques, And New Directions

Introduction

A reaction to the decline of rehabilitation and the rise of “nothing works” discourse in the late 1970s and 1980s, the new penology is configured as a radical break from the past at a moment of penal crisis. As David Garland writes in The Culture of Control:

Within the brief time it takes to progress from basic training to mid-career, a whole generation of practitioners – probation officers, prison officials, prosecutors, judges, police officers, and criminological researchers – have looked on while their professional world was turned upside down. Hierarchies shifted precariously; settled routines were pulled apart; objectives and priorities were reformulated; standard working practices were altered; and professional expertise was subjected to challenge and viewed with increasing skepticism. The rapid emergence of new ways of thinking and acting on crime, and the concomitant discrediting of older assumptions and professional orientations, ensured that many penal practitioners and academics lived through the 1980s and 1990s with a chronic sense of crisis, and professional anomie. (2001: 4)

This context of crisis became the setting for fundamental paradigm shifts in understandings of crime and punishment. In the closing moments of the twentieth century, the United States, for the first time in world history, imprisoned more people for the purposes of crime control than any other society, with a total prison and jail population of over two million people. This kind of penal expansion was in keeping with the kind of growth taking place across various forms of punishment from prison to probation. This expansion continued even as crime rates decreased. In fact, historically, there is no significant correlation between crime rates and incarceration rates; rather, offenders are more likely to commit a crime after release from prison than previous to incarceration.

For these reasons, criminologists began to look closely at the latent functions of punishment, those reasons and motives that are less apparent in rhetoric but materialize in practice. Against this unprecedented transformation, scholars began to ask a new set of questions: If the prison’s function cannot be found in perhaps its most rational and logical justifications, including crime reduction, public safety, and rehabilitation, then why does the institution persist and why did it expand exponentially in the late twentieth century? How has this transformation reconfigured the implementation of justice, notions of individual and collective identity, and modes of governance? They also produced a wave of new explanatory concepts and theories – terms like “penological crisis,” “incarceration binge,” “prison-industrial complex,” and a “new penology.” The new penology, then, as articulated by its main theorists, sociolegal scholars Malcolm Feeley and Jonathan Simon, represents perhaps most fundamentally the understanding shared across much of criminology that “a different kind of historical change is unfolding in our contemporary penal practices” (Simon 1988: 452).

Background And Foundations The New Penology

The new penology represents one of the more powerful accounts that seek to add insight to these problems and predicaments by highlighting some of the potentially permanent effects contemporary patterns in punishment may have upon the configuration of criminal justice and social life. Feeley and Simon introduced the new penology in a widely read 1992 Criminology article which they then followed with a body of work dedicated to revising and further developing their propositions (Feeley and Simon 1992, 1998). Their claims continue to serve as a critical point of reaction within the field of criminology. For these authors, the predominant transformation in punishment is theorized to be centered upon a “change in conception – discourses, objectives, and techniques – in the penal process… shifts that have multiple and independent origins and are not reducible to any one reigning idea” (1992: 449). This change in conception centers upon three core assertions, which they describe as follows:

The emergence of new discourses: In particular, the language of probability and risk increasingly replaces earlier discourses of clinical diagnosis and retributive judgment.
The formation of new objectives for the system: The objectives we have in mind are not simply new to the system (some of them have old antecedents) but are in some sense newly “system.” We are especially interested in the increasing primacy given to the efficient control of internal system processes in place of the traditional objectives of rehabilitation and crime control. Goals like reducing “recidivism” have always been internally shaped in important ways, but in the contemporary setting, the sense that any external social referent is intended at all is becoming attenuated.
The deployment of new techniques: These techniques target offenders as an aggregate in place of traditional techniques for individualizing or creating equity (Feeley and Simon 1992: 450).

The emergent discourse, objectives, and techniques of the new penology express a fundamental reorganization in contemporary understandings of crime and punishment, identified in such patterns and practices of surveillance and regulation as preventive detention, profiling, intensive supervision programs, the buy-busts and drug testing practices at the heart of the drug war, the targeting of subpopulations through policies centered upon selective incapacitation (habitual, career, and “three strikes” offenders), emergent statistical and software packages that track crime, and the increase in imprisonment alongside of the rising prominence of policy and crime experts. The primary contours of this reorganization, as marked by Simon, include a shift from the individual to the aggregate, from normalization to management, and from social norms to systems. This perspective privileges utilitarianism over moral reasoning, quantitative methods over qualitative analysis, and the notion of criminal justice as a series of operations and systems over individual-focused justice and rational actor theories.

Governmentality, Risk, And Actuarialism

It is actuarial. It is concerned with techniques for identifying, classifying and managing groups assorted by levels of dangerousness. It takes crime for granted. It accepts deviance as normal. It is skeptical that liberal interventionist crime control strategies do or can make a difference. Thus its aim is not to intervene individuals’ lives for the purpose of ascertaining responsibility, making the guilty ‘pay for their crime’ or changing them. Rather it seeks to regulate groups as part of a strategy of managing danger. (Feeley and Simon 1998: 375)

The new penology is squarely centered in larger frameworks of governmentality, risk, and actuarialism. Governmentality, with its implied rationalities, centers upon knowledge and practices that operate across and are shared between individuals, institutions, and the state. The new penology is most formidable in that its discourses, objectives, and techniques come to operate broadly across the social body as a form of governance. The new penology thus marks a move away from one of criminology’s dominant frames in understanding punishment, a disciplinary model. Disciplinary modes of punishment are organized around an intense focusing upon the individual down to the most minute of details and habits. This kind of disciplinary focus, as exemplified by Foucault, is built around surveillance and normalization of the offender, inmate, delinquent, worker, and student, embodied in the closing of the gap between a norm and its deviation, the transformation of the individual self. The new penology, which privileges an actuarial model, is no longer concerned with closing this gap between individuals and society but rather seeks an accommodation of such variables through the management and mapping of distributions of populations. As Simon argues, in part, “the movement from normalization (closing the gap between distribution norm) to accommodation (responding to variations in distributions) increases the efficiency of power because changing people is difficult and expensive” (1988: 714). In contemporary social and political contexts, “it is cheaper to know and plan around people’s failings than to normalize them” (Ibid). The new penology no longer seeks to normalize populations but rather to regulate them and their differences through segregation across abstract spaces, groupings, and social distributions that ironically culminate in even deeper exclusionary divisions, including the creation of a “functional” or permanent underclass. This phenomenon is noted in the governmentality literature as governing from or at a distance.

Within this new mode of governance, crime control efforts on the part of the state are defined by an abrogation of responsibilities by institutions that are already and historically under-sourced and under-trained. These justice agencies, envisioned originally as the last resort in the line against social problems, in many ways are now the first resort in the management of the mentally ill, homeless, economically disadvantaged, etc. Such a phenomenon also seeks to responsibilize individual actors even as it restricts the discretionary decision making of frontline justice actors and then implements unwieldy mechanisms of accountability through performance indicators. This mode of governance is most compelling in its ability to move out from political centers through dense, overlapping networks in which authorities, groups, institutions, and individuals all reflect a new emphasis no longer on production but the calculation of the activities and desires of others. Such entities will direct classification via an assessment of risk, including where it is most likely and how it might most efficiently be managed. Under the new penology, risk, in the form of “dangerous” populations, is most effectively managed, not through normalization, but spatialization marked by a well-mapped exclusion and isolation through mechanisms of classification rather than the more disciplinary mode of segregation through social control institutions. This pattern is most visible when social control is organized in a manner which extends beyond justice agencies into families, communities, schools, churches, and other primary social institutions as well as the fabric of social life. For instance, increasing attention and debate has centered upon the mapping of sex offenders in communities through social policy and legislation as groups who remain intractably in need of management, grounded in a fundamental public pessimism about the possibility of individual reformation or change. In the clinical and justice discourses surrounding that management, the vocabulary of actuarialism through risk management models is strongly apparent. These patterns are significant in the manner in which they invoke penality as a way in which to generate fundamental changes in political culture, generate regimes of truth, exercise power, differentiate groups, classify individuals, and thus, in general, reorder social life. In such a context, the material and institutional structures of the new penology have social and political effects with life organized around crime control and a perpetual search for security.

Such patterns are strikingly similar to other emergent sociological concepts, including Zygmunt Bauman’s paradigm of exclusion, Jock Young’s exclusive society, and Lo¨ıc Wacquant’s urban outcasts and “deadly symbiosis” of community and prison. In such contexts, Foucauldian disciplinary modes, with their emphasis upon normalization – and the closing of a gap between a norm and its deviation – no longer dominate. Rather, these gaps are simply accommodated and regulated largely through exclusionary practices. In contemporary social and political contexts, Simon argues “it is cheaper to know and plan around people’s failings than to normalize them” (1988: 771). This marks a critical site from which the study of punishment must carefully distance itself, they imply, in order not to reproduce these exclusions and normalizations through an institutionalized myopia in its own reports and research. Rather, the place of experts is one that calls direct and critical attention, like Feeley and Simon, to these dangerous convergences. This kind of engagement with governmentality speaks to a theoretical breadth in criminology that marks not only how emergent modes of governance shape the nature of crime and punishment but of what it means to be social. Risk and actuarial logics, which often omit sociological thinking, make it more difficult for groups and individuals to build solidarity and exercise political choice. At stake is the preservation and protection of human agency from forms of regulation and classification that may, at first glance, seem all too rational, logical, and “natural.” In such contexts, the privileging of actuarial techniques risks denying the moral, political, and social significance of the historical markers of vulnerability – race, class, gender, and age – instead arguing these differences are no longer problematic, closing off significant social debates a priori. Beyond this, individual and group identities are rendered flat and sterile with little critical reflexivity. As Simon argues, “Rather than making people up, actuarial practices unmake them” (Ibid: 792). Out of this emerges a new and dangerous kind of social collectivity, one that is defined not by a deep sense of shared bonds or experiences but by exclusion. This is one of the larger implications of a new penology.

In such scenarios, the weakening of social welfare frameworks for governance has led to an expansion and exportation of punitive carceral strategies by the United States, a new mode from which to regulate minorities, the poor, and the socially abandoned across the planet. Importantly, these shifts are not hidden or invisible but rather prominent, naturalized features of emergent urban landscapes. Such transformations map the manner in which sovereignty is reconfigured in a broad social and global landscape with the imprint of a distinctly American mode of punishment. Importantly, citizenship in these contexts is experienced as hierarchical, determinedly and dangerously paternalistic, and punitive in its reliance and reproduction of social and cultural oppositions of race and class, all of which flow into and out of insecurities surrounding criminality and dangerousness. In this sense, the new penology is a distinctly dangerous way of understanding crime and punishment in its capacity to feed into social practices that extend globally and foundationally into social order and life. For these reasons, the defining contours of the new penology are built around broader notions of governmentality, risk, and actuarialism, practices that:

are so familiar and banal that it is difficult to notice them at all, let alone see them as central components of a new regime of social ordering linked to myriad exercises of social control and power, e.g., hiring, admitting, campaigning, selling, sentencing, and educating. Yet these practices are generating fundamental changes in our political culture. (Simon 1988: 771)

These practices are argued to derive from actuarial techniques that “play a central role in a proliferating set of social practices. They are at the same time a regime of truth, a way of exercising power, and a method of ordering social life” (Ibid: 772). Actuarialist models emerge as complex mixtures of styles of thought, discourse, and vocabulary as well as sets of practices, strategies, and technologies. Grounded in efficiency, they value a certain technicism where system streamlining on the basis of cost-benefit analysis and risk assessments is foregrounded. They are driven by an economy of management centered upon the distribution of aggregate numbers of individuals across the justice system and an extension of these patterns of control across the everyday life of offenders and system professionals – “a fundamental respatialization of control mechanisms, from the enclosed spaces of carceral institutions to the dispersed territory of ‘the community’” (Rose 2002: 212). Their primary tools are prediction instruments, classification schemes of “at-risk” populations, distribution grids, and technology, all of which are conducive to the production of emergent, wider networks of control.

These features reflect the manner in which actuarial understandings of the world are perceived as having the potential to fundamentally transform social life, playing pivotal roles in the organization of power, expertise, and social control. In this system-based focus, justice itself is reconfigured, and, as sociologist David Garland argues, “new performance indicators tend to measure ‘outputs’ rather than ‘outcomes,’ what the organization does, rather than what, if anything, it achieves” (1996: 458; See also Garland 2001). In this regard, the new penology marks a larger shift in the history of social control, the first grounded in a “crisis of penological modernism,” devoid of philosophical underpinnings and organized instead around a collapse of faith and implicit sense of futility in deterrence and rehabilitation. Its power is in the implication of a particular form of logic that facilitates other kinds of penal aims, including incapacitation and retribution.

Centered upon the prevalence of uncertainty in the discretionary patterns of justice, the new penology offers a formula for control and the semblance of predictability in terrain that has systematically denied and subverted efforts and reform and control. The center of the new penology is consequently and, not surprisingly, a paradox:

Across its various forms and calculative techniques, one feature stands out: risk thinking seeks to bring the future into the present and make it calculable. We could say that it tries to discipline uncertainty, in the sense of making uncertainty the topic of a branch of learning and instruction. It acts as well to discipline it in a second sense, by bringing uncertainty under control, making it orderly and docile. Risk thinking tames chance, fate, and uncertainty by a paradoxical move. (Rose 2002: 214)

Its attention to risk assessment through testing instruments and statistics serves as well to automatize and conceal a host of decision-making processes by practitioners and experts, instead often responsibilizing actors for their own risk classifications. In the end, justice actors, experts, subjects, and citizens all find themselves caught up in the tensions that define the new penology. And yet, Feeley and Simon argue that this very reality is concealed by the nature of the aggregate that actuarial practices exemplify, constituting a new kind of social collectivity, “one defined neither by internal bonds, nor external experiences, but by locations on a statistical distribution” (Simon 1988: 789). These classification schemes produce particular kinds of identities and individualities, but, as Simon argues, these techniques lack a distinctive sense of subjectivity and group identity itself is treated as “singularly sterile in [its] capacity for political empowerment” (Ibid: 789). Thus, “actuarial techniques can be used to identify people who are more or less likely to be high-rate offenders, but these variables are not integrated into a conception of the underlying subject” (Ibid: 791)…. “actuarial classification, with its de-centered subject, seems to eliminate, in advance, the possibility of identity, of critical self-consciousness and of intersubjectivity” (Ibid: 792). In that sense, the new penology is a symptom of a larger crisis within governance and thus apparent in punishment, one that seeks to regulate rather than explain or change contemporary social problems. In doing so, the meanings of the social and the self are argued to be fundamentally transformed.

Critiques And New Directions

Critiques

In Feeley and Simon’s own words, their “thesis has sparked vigorous debate” (1998: 148). Many have critiqued the “newness” of the new penology and instead perceive it as a repackaging to some extent of preexisting theoretical frames. For some, the new penology represents an invocation of old penological and criminological themes with its emphasis upon classical Marxist terms like the “dangerous classes.” Others argue that the new penology is unable to account for the rise of populist understandings of punishment centered upon retribution and an emotive turn in law and order politics. Others wonder to what degree frontline actors and professionals in the criminal justice system have internalized the actuarial logic of the new penology. Similarly, it is not entirely clear how the new penology marks a fundamental rupture from disciplinary to actuarial modes, or from modern punishment to something postmodern or otherwise, with critics pointing to the presence of actuarial logics historically in criminal justice as well as the persistence of individualistic, rational actor orientations that privilege retribution and expressive modes of populist sentiment in contemporary contexts.

Sociolegal scholar Mona Lynch writes, “One site for examining whether the new penology is indeed emerging as a distinct penological operating system is at the place where strategy is put into penal practice: at the level of implementation. There is reason to think that the contact point between the institution (and its new penological policies) and the outside world (with its old-fashioned “modern” take on criminality) is one battleground where the sustainability of the new penology may be tested” (1998: 842). Lynch models an empirical testing of the new penology through a rigorous ethnography of a California parole field office. Her findings point to the manner in which features of old and new penology meld in the everyday settings of criminal justice agencies, with actors reaffirming conventional law enforcement roles, including an individualistic focus, even as upper management developed policies framed by actuarial logics of risk management.

Criminologist Leonidas Cheliotis makes a case as well for the unpredictable aspects of human agency within institutional frameworks as a check upon the totalizing tendencies of a new penology. In an article where he examines the ways in which the defining boundaries of the new penology foreclose other possibilities, he writes:

In so far as criminology aspires to influence the penal policy debate to any significant extent, analyses that fail to identify ‘the real human stuff of disposition, choice and action – the stuff of which society and history are actually made’… cannot but be fatalistic and nihilistic, thereby inauspiciously (one could also say ‘by way of benign neglect’) contributing to the reproduction of the very crises they are supposed to pre-empt or combat…. Yet, in the dearth of convincing evidence that they signify a ‘marked break with the past’, and given that actuarialism is neither inevitable, nor necessarily undesirable in its entirety, the concept of new penology lacks interpretive adequacy and, consequently, remains a mere hypothesis. And this is a hypothesis which, in itself, Feeley and Simon would surely wish to see eventually disproved. (2009: 331)

New Directions

Aside from these critiques, the centerpiece of the new penology is found in Simon’s introduction of the idea of “governing through crime” in the volume by the same name (2007). As crime becomes the primary way in which a broad variety of social problems and social action comes to be configured, Simon finds that the penal state itself becomes a framing logic not simply for the urban centers hard-hit by crime and violence through spiraling inequalities of race, class, gender, and ethnicity but for the sites and centers for the performance of middle-class life – work, education, family, and health. Crime and punishment become the larger context for shaping and regulating the conduct of others. The construction of issues related to work performance, education, divorce and child custody, etc. as “crime” issues allows for a host of regulatory mechanisms that would not otherwise be available: drug testing and other forms of surveillance; harsher, more punitive treatment; segregation; restriction of mobility; and forced movement, such as deportation. In Simon’s estimate, governing through crime exceeds the conventional parameters of criminal justice and has seeped into the fabric of social life by way of other social institutions and everyday life frameworks. In this way, governing through crime is not really about crime but is instead a useful tactic or legitimation strategy that enables actors to manage other kinds of disputes, annoyances, social problems, or personal and public issues. Its rise includes an expansion of executive power, the privileging of a new and dangerous mode of political subjectivity – the victim, the weakening of courts and judges, and the rise of mass incarceration. In this manner, governing through crime produces citizens who are not victims themselves but live in fear of being victims across complex regulatory frameworks that deny the formation of other kinds of subjectivities – the kinds of informed citizen actors upon which democracy depends.

Finally, the new penology foreshadows a growing sense of pessimism and futility in criminology and criminal justice alike. Centered in correctional managerialism, actuarial justice, and the privileging of custody, the discourses, objectives, and techniques of the new penology share key elements with what works models. Grounded similarly in the crisis of the state, a heightened perception of high crime against the futility of punishment and a hardening of popular attitudes toward criminals, both discourses speak to the limits of science. However, the new penology is marked by an expansion and elaboration of exclusionary tactics through the convergence of scientific and bureaucratic mechanisms as managerial strategies, practiced and implemented through new technological possibilities in the realm of empirical classification and social control. More significantly, the new penology, through such public and private convergences, extends outward into the production of identities and subjectivities well beyond crime across the social fabric – governance at a distance and through crime. Such a perspective relates specifically to the despair and futility of nothing works in that, as an actuarial objective, it “does not offer an answer to this perceived hopelessness. Instead, it takes for granted that no answer exists, and offers the placating alternative of at least managing this hopelessness in a less burdensome and more efficient fashion… a chance to succeed, although only through a redefinition of goals” (Kempf-Leonard and Peterson 2000: 68).

The linkages between what works discourses and the new penology are complex, but importantly many of the aims, methods, and techniques of evidence-based research are potentially and aptly directed at new penology objectives with their privileging of techniques for identifying, classifying, and managing groups assorted by levels of dangerousness. In such worlds, science can collide again with familiar terms in a way that “takes crime for granted… accepts deviance as normal… is skeptical that liberal interventionist crime control strategies do or can make a difference. Thus its aim is not to intervene in individuals’ lives for the purpose of ascertaining responsibility, making the guilty ‘pay for their crime’ or changing them. Rather it seeks to regulate groups as part of a strategy of managing danger” (Feeley and Simon 1998: 375). In keeping with new penology claims, much of the contemporary study of punishment has concerned itself with the absence of social vision and metanarratives that might anchor the practice of punishment in democratic, humane discussions. As Adrian Cherney argues, “Any form of social policy hinges on more than a rational analysis of ‘what works.’ Instituting change in how society responds to social problems depends also on the ability to articulate a vision – a public ideal around which reform can be mobilized….” (2002: 51), a collective possibility that is constrained by the objectives, discourses, and techniques of the new penology.

Conclusion

Feeley and Simon argue that the new penology might best be envisioned not “as a theory or program conceived in full by any particular actors in the system, but as an interpretive net that can help reveal in the present some of the directions the future may take” (1992: 460). In this future, they argue that the essential elements of a new penology are powerful enough to become “permanent features of the criminal justice system” (Ibid: 470). As knowledge concerning the features and qualities of particular groups grow more distinct in public records and classification schemes, “the ideological effects of actuarial practices… render more difficult the formation” of community organization and social movements where “the effect of actuarial practices is precisely to make it more difficult for groups to intensify their solidarity or exercise political choice” (Simon 1988: 786–787). One concern then of the critics of a new penology is the preservation and protection of human agency from forms of regulation and classification that may, at first glance, seem all too rational and logical. As Simon argues in early work:

Today’s actuarial practices presage the development of a third model of politics where neither status nor class provides the basis for engagement. Indeed, we have no real models of what aggregate politics look like, but extrapolating from current conditions leads to a disturbing picture. Actuarial practices can mobilize segments of the population and form majorities that have no basis for understanding themselves as motivated by a common cause. (1988: 793)

Mapped into dramatic changes in law and administration, across such vast sociolegal-landscapes as workplace regulation, sex offender registries, immigration practice, homeland security, and the war on terror, the new penology is a prescient and cogent reminder of the present and potential face of governance now and later.

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