The new penology

There’s an excellent and much-cited article, “The New Penology,” which I think is worth a read. The old approach was retribution, i.e. holding the defendant accountable for wrong he had committed. Then they switched to rehabilitation, which meant saying, “He doesn’t have free will, so he’s not really responsible for his actions; but we can influence his future actions by putting him through a rehabilitative program.”

Then in the mid-1970s, that theory got discredited, and we switched over to the current McDonaldized model, which is based on incapacitation. I.e., put members of the population into risk groups and restrict the liberty of those who are deemed high-risk.

That was the philosophy behind taking away custody of Piper from me. A retributionist policy would’ve said, “He hasn’t done anything to her yet, so his freedom to be with her should not be restricted.” A rehabilitative policy would’ve said, “Let’s get him into a program to try to enable him to be with her without harming her.” But the current, incapacitationist philosophy says, “Since he’s been assessed as posing a risk to her (by virtue of being placed into the risk group known as “men diagnosed with pedophilia and autism”), let’s take away his ability to harm her by restricting his liberty.”

(At the same time, making my intentions known in a way helped protect me, because now that I’ve been incapacitated through loss of custody, I can’t actually immediately follow through on anything like what I had planned, that would land me in prison for a long time.)

So that is what happened. Incapacitationism has its merits, but also its flaws, most notably that if you’re someone who dindu nuffin, or who committed some very petty offense, you can still have quite a lot of freedom taken away from you on the basis of fears that you’ll commit crimes in the future. This is Minority Report stuff. Most mainstream modern criminologists would probably support a Minority Report-type system, if they could be sure that the predictions of future crime were reliable.

Incapacitationism tends to be opposed by, e.g., blacks, because they’re in a class of people that’s considered at high risk of committing crimes and therefore they’re liable to get treated harshly by the system. It’s the same way with pedophiles and many other groups. People are losing their kids left and right, or getting lengthier sentences, or more restrictive conditions of probation, because a psychologist diagnosed them with a certain disorder and said, “Therefore, they’re at elevated risk of committing a crime.” The philosophy of incapacitation creates a lot of scope for net-widening.

One thought on “The new penology

  1. I prefer proportionate retribution. The trouble with the old retributive system is that it was like, oh, you stole someone’s horse. Ok then we’ll have you executed. It just didn’t seem very proportionate and that’s partly why they came up with the rehabilitative system but it didn’t really differentiate between victimless crimes and crimes with victims and crimes with very grave consequences for victims. So the victimless crime offenders got screwed over because they had to rehabilitate themselves when they did nothing wrong which is very hard to do. And the serious offenders got off too lightly. So now they’ve come up with incapacitationism which is a fucking insane ideology.

    I like your term “incapacitationism”, before I just thought of it as 1984/minority report style policing but putting it the way you do really puts the blame at the feet of the bureaucrats. If you call it 1984/minority report none of the bureaucrats realise that they are creating such a system, they always find an excuse to say “oh it’s not 1984 yet” but when you mention assessing risk etc it’s kind of hard for them to hide from the fact that’s what they do. And it’s a horrible, horrible mindset.


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