Lucia Zedner On How Pursuit Of Security Modified Criminal Justice
“The criminal justice process, the trial, and punishment practices rely upon entrenched assumptions, conventions, and principles that are thrown into question by the security society.”
— Lucia Zedner
In 1992, MM Feeley and Jonathan Simon exposed the functioning of a “new penology” which no longer fancied “pathologies of crime” and the resultant interventionist approach. The “new penology”, departing from the “older one”, is centred around risk. Instead of “individualistic diagnoses”, it is interested in techniques to identify, classify, and manage groups based on “dangerousness”.
However, what socio-political changes informed such a shift towards “new penology” obsessed with risk or “actuarial justice”. 17 years later, in Security, Crime, and Criminal Justice, Lucia Zedner attributes this shift to the growing pursuit of “security”. She goes further to examine how the practices emerging from this pursuit of security has influenced and modified conventional understanding of criminal justice.
Zedner brings forth the impact of new security practices on not just the understanding of punishment, but on the conceptualisation of crime itself. In a security society, crime is no longer conceptualised as deviance, pathological, or a result of structural deprivation and inequality. It is reconceptualised as a “normal activity”, a “routine act” that can be committed by any rational person if the opportunity is both present and relatively beneficial.
This shift towards “opportunity theory”, “routine-activity theory”, and “rational choice theory” is partly influenced by the declining faith in the rehabilitation model and partly by the growing influence of “economic analysis of crime”. Now that the conceptualisation of crime has moved from the offender to the offence-enabling opportunities, the focus of intervention has also shifted from the “soul of the perpetrator” to the “structural conditions of offending”:
“No wonder then that security has become an important plank of domestic crime control and policing. It is articulated as a growing concern with individual and communal safety, a function of personal and community crime prevention, and manifests itself in the growing armoury of security and surveillance technologies.”
This reconceptualisation of crime in a security society prioritises privileging of “pre-crime” intervention rather than post-crime desert-based punishment. There’s a growing focus on surveillance, situational crime prevention, and community safety initiatives, risk assessment, actuarial profiling, offender registers, and preventive orders.
This pre-emptive interventionism, Zedner argues, is antithetical to the conventional understanding of criminal justice — which is retrospective, identifying and addressing deeper roots of criminality, and just deserts. Zedner further attributes displacing of the deserts-based approach by the risk-management to occupy the central position in the penal system to key shifts in political practices:
a. A larger shift in political allegiance from retributive justice to a consequentialist, security-oriented focus on deterrence and incapacitation
b. penal populism with its attendant calls for public protection, bolstered by media-fed perceptions of the risks of sexual predation, violent crime, and terrorist threat
“Together they contribute to a growing sense that ‘presumption of innocence’, ‘proof beyond reasonable doubt’, and the requirement of proportionality in punishment are legal luxuries ill-suited to present perils”.
Zedner further identifies two practices — civil detention orders and precaution jurisprudence — to show how an obsession with security has led to “parallel systems of questionable justice” which do not squarely operate within criminal law. Under the garb of civil measures, they’re exempted from the more exacting requirements of criminal law, while they continue to remain punitive or resort to harsh treatment:
“Although these measures (civil prevention orders) substantially extend the scope of state power to act in the name of security, they can be seen to threaten security in its older liberal conception as the security of the individual against an overbearing state.”
Finally, Zedner argues that the risk-orientation of security society has also altered the conventional functioning of sentencing and penal institutions. The penal populism fuelled by the populist press and public demand for greater protection with longer sentences has resulted in draconian penal practices:
“Incapacitative or protective sentences are now common features of many sentencing regimes and serve to legitimate prison terms far in excess of proportionality by reference to the future risk allegedly posed by dangerous, violent, sexual, or would-be terrorist offenders. Security thus appears capable of radically reconfiguring the uses to which even core criminal justice institutions like the prison are put”.
Complement this Andrew Ashworth on Security, Terrorism, and the Value of Human Rights, and Ian Loader on Policing, Securitization, and Democratization in Europe.
