Positioning yourself vis-à-vis multiple arguments

The twenty first century has brought a lot of changes into different spheres of human life, and it turns out that criminal justice is not an exception either. Directed at performing social control, preventing crime and mitigating its effects as well as at punishing those who violate the law through specific criminal penalties and afterward rehabilitation procedures, criminal justice makes up a complex system of practices and institutions, each requiring peer attention of scholars and practitioners. This public sphere is highly affected by other branches of science and knowledge, and therefore at the moment many of the crucial principles of the previous days are revised, shifted and often replaced by new interventions. For instance, Bernard E. Harcourt and Leonidas K. Cheliotis are thus trying to analyze the current situation from different points of view. They both approach the concept of new penology. More generally it is done by Cheliotis, while Harcourt has chosen a narrower problem and focuses on the application of actuarial methods in criminal law.

To begin with, Harcourt sets the scene and explains what actuarial methods are like and how they got to be applied in criminal justice practice. In fact, actuarial methods have been borrowed from insurance industry where they were used to predict the rates of mortality among different social groups. While presenting the situation, Harcourt refers to different specialists scrutinizing prediction instruments in different domains of criminal law. In particular, he quotes Ernest Burgess who insisted on the effectiveness of prediction for parole supervision and so on. Further, Harcourt reminds that now risk-assessment tools are used more and more often in detention and sentence and sanction administration. The long-term goal of prediction in criminal justice is obviously to detect more crime and to reduce recidivism. However, this function is challenged by the author and in order to prove that actuarial methods are not as effective as it is thought, he uses a broad system of arguments. The main thesis is that “profiling on higher past, present or future offending may be entirely counterproductive to the central aim of law enforcement—crime minimization” (Harcourt 4). The author claims that applying probabilistic methods to profiled population leads to distortions in the carceral population, and the representation of the latter is increased among the actual offenders. In other words, statistic methods enforce the specialist to make calculations among those who have already got into the criminal statistics, leaving apart those whose time has not come yet. This argument seems to be rather reasonable and persuasive. Harcourt criticizes the mechanical use of technical knowledge in the criminal law and supports his criticism by the example of stranger rape investigations, where concentration on group characteristics may disorientate the criminologists. The mistake is, he stresses, to think that all the groups react to the change in policing in the same way. Besides, he explores different actuarial instruments (like the Rapid Risk Assessment for Sex Offense Recidivism) and comes to the conclusion that they can lead to pitiful results: “the use of actuarial measures whether at sentencing or in policing may increase overall crime in society,” Harcourt (31) warns.

Finally, the solution Harcourt offers is random sampling. He plentifully describes the virtues of randomization which helps to determine the actual offending population and to keep to more just punishment.

Cheliotis, in turn, aims to demonstrate how the role of human agency is downplayed in new penology and its approach of managerialism. Like Harcourt, he chooses an object to criticize and brings forward a set of counter plea against the over-rationalized criminal justice system. To show that the new penology is “theoretically incomplete, as well as poorly evidenced in both historical and empirical terms” (Cheliotis 313), he relies on the studies of outstanding sociologists and philosophers (including Emile Durkheim, Max Weber and Hannah Arendt) rather than practical evidence, as it has been done by Harcourt. The difference in sources makes the character of the two researchers’ works different too. Both of them present a thesis and support it with a logically structured system of arguments, but these arguments have different nature. Harcourt’s work seems to be more practicable, and more oriented to problem-solving through definite mechanisms, whereas Cheliotis’s work looks more theoretical as it has philosophical grounds. Like Harcourt, Cheliotis also criticizes the institutionalization of expert actuarial knowledge in the criminal law, but for him that is only one of the many points of argumentation against utilitarian approach. “A more holistic analysis of penal currents would comprise an examination of whether, and the degree to which, professionals actually resist subordination to illegitimate systemic techniques and goals,” he contends (Cheliotis 318). Apart from that, he shows how dangerous the increasingly hierarchical division of labor is becoming within criminal justice organizations. For example, the older generations are opposed to the younger generations of prison governors. While the first belonged basically to the principles of rehabilitation and professionalism, the latter are more characterized by bureaucracy and control. Cheliotis explains that individualized and mechanistic routine is in that way favored by the conditions of market-oriented construct of work identity. It is concluded that “as if the symbiosis of managerialism or actuarialism and criminal justice cannot but be a deadly one, as if the two can only meet to the detriment of the true interests of either the offender or the society” (Cheliotis 329)

In this way, Cheliotis demonstrates how the traditional goals of punishment understood as retribution and rehabilitation are challenged by the actuarial logics and agentic capabilities incarnated by the professionals.

Well, on the one hand, it is hard to disagree that we have really become the slaves of our technical advances and the influence of technical knowledge as well as postmodern concepts distorts our sense of justice. On the other hand, those shifts seem to be quite natural. The society is progressing and it is impossible to keep to the same rules for centuries. In the Middle Ages religion was the most important tool to produce solutions. Then the Age of Enlightenment came and the reason was put at the head. The Renaissance brought out the principle of humanism, and postmodernism came to annihilate all the principles at all. It does not mean that we should simply drift and stay blind. On the contrary, there is an urgent need to be careful and reasonable. And the works of Harcourt and Cheliotis can be very useful to see the alternative point of view, to see all the benefits and drawbacks of innovations we are now facing in the criminal justice system. In particular, it seems quite reasonable to apply random sampling based on independent standard for investigatory purposes, as Harcourt proposes. What is more, the understanding of power scrutinized by Cheliotis is also a strong base to be guided by for further research in the field.

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