Criminal Justice Administration or Governing Through Crime?

Mike Larsen, Kwantlen Polytechnic University

Part I: Conceptual Shortcomings

It is worthwhile, at the outset of any course of study, to spend some time thinking about terminology. This is worth doing on an ongoing basis, when new concepts are encountered and old concepts challenged or refined, but at the outset it is particularly important because it can make the difference between an approach to inquiry based on the accumulation of facts about a ‘settled’ body of knowledge and an approach to inquiry that poses problems and encourages critical examination. This is especially true when the terminology of interest defines the course of study. With this in mind, I would like to begin by thinking about the meaning of the term ‘criminal justice administration’ and its adequacy as an organizing concept.

We could proceed by assuming that we all share a rough understanding of what this term means – “the administration of criminal justice, of course” – and move on to examine the particular institutions and processes involved. Alternatively, we could adopt an authoritative definition that is descriptive enough to be useful but open enough to account for the complexity of the topic. A third option – the one we will pursue – involves carefully considering the ideas and assumptions that are implied when we use the term ‘criminal justice administration’. Two implications stand out as warranting problematization.

First, the concept implies that we are interested in a range of extant practices and institutions that operate so as to produce or reinforce something understandable as criminal justice. Though this may seem like a straightforward proposition, it is important to note that there are competing philosophies on the nature of justice. For Plato, justice is a human virtue that is tied to a vision of individual and social good. For the proponents of the Classical School, justice is a means to ensure that rational people conform to the social contract. Advocates of restorative justice associate the concept of justice with responsibility, reconciliation, and healing, while advocates of retributive justice view justice is the state’s guarantee that persons who violate the law will face retribution and receive their ‘just desserts’. Some are of the opinion that justice resides in the end results or outcome of a process, while others believe that justice resides in the process itself. So, justice itself is a contested concept. It is not difficult to think of scenarios where two observers may reach radically different but equally compelling conclusions about the justness of a situation.

Even if we adopt a working definition of justice that seems valid, the administration of the criminal legal system may or may not achieve justice (understood as a characteristic of processes or a desired end) in any given case. It may in fact produce or reinforce states of individual or systemic injustice. The relationship between law and justice is complex and contingent, and certainly ought not to be assumed or taken for granted. In any given case, there will be moments of overlap and / or gaps between the administration of criminal law and the pursuit or realization of something recognizable as justice. Sometimes, justice emerges despite the system, not because of it.

Further, the work of the institutions and organizations associated with ‘the criminal justice system’ may not be oriented towards the production of justice in the first place. They may instead be working to reproduce order (to maintain and reinforce a defined status quo), to provide security, and / or to provide social control.1 Security is another complicated and contested concept. Generally, it involves efforts taken to define, assess, pre-empt or respond to imagined sources of harm, under conditions of uncertainty.2 Many contemporary security practices are future-oriented – that is, they are based on predicting possible threats and acting upon them before they materialize. This orientation sets the pursuit of security apart from the pursuit of justice, which is often understood to be reactive – responding to wrongs done and seeking a just resolution. As Richard Ericson notes, traditional due process standards and elements of criminal law – actus reus and mens rea – are often seen as impediments to the pursuit of security, which is based on the precautionary principle and involves the “criminalization of the merely suspicious”.3 Efforts taken in the name of security and social control may serve to obstruct or erode justice. Consider the decidedly racialized nature of the American mass incarceration phenomenon, instances of ‘noble cause corruption’ in police organizations, recurring wrongful convictions in Canadian courts, the use of secret intelligence in security certificate proceedings, and the rising proportion of persons held in pre-trial detention pending trial in BC and across the country.

To summarize, the first problem we encounter when scrutinizing the term ‘criminal justice administration’ is that it implies that the practices and institutions we are interested in learning about are pursuing and / or producing criminal justice as a singular objective. This is not a supportable assumption.

The second problem we encounter is that the concept of criminal justice administration implies a specific field or domain. It implies that the administration of this domain – criminal justice – is distinct from other subject domains or areas of governance, so that this policy, practice, or institution is clearly associated with the administration of criminal justice, while that one is recognizable as ‘something else’. Perhaps this is the case in some circumstances, but again, it cannot be assumed. The administration of criminal justice overlaps with other domains of governance. A range of actors and groups are involved in claims-making and moral entrepreneurship regarding the nature and severity of social problems, and a multiplicity of organizations and institutions are actively engaged in the provision of social control. Sometimes social problems become framed as ‘crime problems’ and brought under the auspices of the criminal legal system. Sometimes behaviours and practices previously understood to be ‘crime problems’ are redefined, normalized, or otherwise moved outside of the realm of criminal law. In many cases, a given social problem or activity is considered to fall within the legitimate mandate of several systems or institutions at the same time – consider the case of a community characterized by high rates of intravenous drug use, poverty, unemployment, homelessness, a lack of affordable housing, and an active street-based survival sex trade. The confluence of challenges facing this community may be framed as an issue of criminal justice by some, and as an issue of public health or community planning and social services by others. In practice, multiple institutions may lay claim to the same social terrain, resulting in instances of overlap, collaboration, and contestation. David Garland notes that institutions of crime control and criminal justice

… form part of a network of governance and social ordering that, in modern societies, includes the legal system, the labour market, and welfare state institutions. They refer to, and are supported by, other social institutions and social controls, and are grounded in specific configurations of cultural, political and economic action4.

So, the institutions and organizations traditionally associated with criminal justice administration – ‘cops, courts, and corrections’ – do work in domains that are peripheral to something that we would recognize as ‘criminal justice’. At the same time, other institutions and organizations that are not traditionally considered to be part of ‘the justice system’ – schools, hospitals, businesses, religious organizations – can be found actively working to govern crime problems.  All of this work may or may not produce – or even pursue – justice.

It seems that despite any heuristic value5 it may have, the concept of ‘criminal justice administration’ is not particularly effective as a term used to define a course of study. Where does this leave us? Is there a better organizing concept to guide our inquiry?

One option would be to speak about the administration of the criminal legal system. This would suggest an interest in the organizations and institutions that are explicitly involved in the creation, interpretation, and enforcement of the criminal law. The criminal legal system includes law enforcement agencies, courts, probation offices, corrections agencies, parole systems, and of course the political processes associated with making and revising the criminal law. It also encompasses the professional actors and other agents associated with these institutions and organizations. This seems like a more accurate organizing concept. However, it retains a focus on the criminal law, which may be problematic given that the formal criminal legal process is invoked in a minority of cases of perceived crime, deviance, and wrongdoing.

An alternative would be to speak about the administration of the crime control system or field. David Garland proposes that this field “is characterized by two interlocking and mutually conditioning patterns of action: the formal controls exercised by the state’s criminal justice agencies and the informal social controls that are embedded in the everyday activities and interactions of civil society”.6 Crime control may or may not involve the mechanisms of criminal law. The concept also encompasses processes of crime control that are undertaken by the private sector and civil society, as well as the political and cultural dimensions of criminalization and social ordering. As an organizing framework, ‘the administration of crime control’ is sociologically accurate and nuanced enough to encompass our domain of study, although we may want to expand it to recognize the aforementioned emergence of ‘security’ as a governing principle and objective – we could speak about the administration of crime control and security.

This would bring us in line with many contemporary criminologists whose work focuses on practices aimed at governing crime or governing security.7

Part II: Governing, and Governing through, Crime

What does it mean to govern? Put differently, what is governance? This has been one of the central questions of political philosophy, and there are many ways of approaching it. The approach that informs my work is based on the writings of Michel Foucault, and particularly his work on governmentality.8 Foucault observes that modern governments are concerned with the management and regulation of populations, and this is accomplished through political economy and techniques of security.9 From the eighteenth century onward, the domain of government has continuously expanded to encompass social processes considered relevant to the government of populations. Foucault insists on a broad definition of government, understanding it to refer to:

the way in which the conduct of individuals or of groups might be directed: the government of children, of souls, of communities, of families, of the sick. It [does] not only cover the legitimately constituted forms of political or economic subjection but also modes of action, more or less considered or calculated, which [are] destined to act upon the possibilities of action of other people. To govern, in this sense, is to structure the possible field of action of others.10

‘To govern’, then, is not the same as ‘to rule’ or ‘to dominate’. It is more subtle, but also more pervasive, encompassing ways of “arranging things in order to lead them … to a suitable end”.11 Importantly, governance extends well beyond the state and operates through a highly developed division of labour. A wide range of organizations, institutions, and relationships are involved in structuring the possible field of action of others. Drawing on Foucault, Hunt and Wickham offer a concise working definition of governance as “any attempt to control or manage any known object” (78).

Governing crime involves practices that structure the possible field of action of others (individuals, groups, and populations) as it relates to crime. It involves attempts to control or manage crime, and to shape conduct and intervene on circumstances in relation to the problem of crime. David Garland suggests that “[a]ny institution or organization that is not in deep crisis has to respond when subjects under their jurisdiction suffer threats to their persons or property”.12 In this sense, governing crime (or threats) appears to be a natural activity, whether it is undertaken by specialized crime control agencies or informally, by other social institutions.

In late modern societies, the potential to structure actions made possible by the concentration of efforts, resources, and political discourse on problems of crime and insecurity can lead to a shift from governing crime to governing through crime. As Jonathan Simon observes in relation to developments in the USA:

When we govern through crime, we make crime and the forms of knowledge historically associated with it – criminal law, popular crime narrative, and criminology – available outside their original limited subject domains as powerful tools with which to interpret and frame all forms of social action as a problem for governance.13

Crime becomes what Foucault refers to as a ‘governmental rationality’ – a unique framework for thinking about social phenomena that gives rise to specific ways of acting upon them.14 Put differently, this involves a shift from the administration of criminal justice to a form of politics where ‘criminal justice’ becomes a mobilizing discourse for administering a wide range of social processes. Simon observes that crime has become a significant strategic issue, and that it is now commonplace for people to deploy the category of crime to legitimate interventions that have other motivations.15

This may seem like an abstract idea. What, we might ask, does governing through crime look like in practice, and why is this important? Some illustrative examples would be beneficial.

One of the settings often associated with governing through crime is the school system. Henry Giroux, in his book Youth in a Suspect Society, discusses the adoption of carceral techniques and modalities by public schools concerned with governing youth through crime.16 Focusing on the American context, Giroux describes the ongoing hardening of school discipline through the incorporation of ideas and practices that regard youth – and particularly poor youth of colour – as essentially suspicious potential criminals. Schools  – in Canada and the USA – now feature regular ‘lock-down’ drills, and many American high schools are sites of random police drug sweeps and locker searchers, security checkpoints, metal detectors, ID cards, CCTV camera systems, zero tolerance’ policies that streamline the suspension and expulsion processes, police liaisons, and extensive forms of electronic surveillance.17 In April 2012, police in Milledgeville, Georgia, handcuffed and arrested a six-year old girl who was allegedly throwing a tantrum in her principal’s office. The girl was subsequently charged with simple assault and criminal damage to property, though the case did not proceed in court.18 In Vancouver and Toronto, the stationing of permanent police liaison officers in high schools is described by proponents as a way to reduce suspensions, the logic being that police presence functions to de-escalate situations that would otherwise result in sanctions.19 Problems of disobedience and discipline at school – traditionally regarded as the proper targets of informal social control through the educational system – are increasingly governed through crime. Importantly, these developments are not exclusively the result of interventions by formal crime control agencies. They are also shaped by cultural forces that depict youth as threats needing control, by moral panics associated with school violence, and by broader forces of neoliberal politics. In many jurisdictions, there is widespread public support for the use of ‘get tough’ crime control measures in a scholastic setting.

Another example of governing through crime is the controversial UK Anti-social Behaviour Order (ASBO) regime, first introduced in 1998 and refined as part of the Anti-Social Behaviour Act, 2003. The purpose of this act is to give police, housing authorities, and local governments tools to control “troubling behaviour” that can “terrorize communities”, but which is not covered by criminal law.20 The definition of anti-social behaviour is elastic, and could encompass everything from being noisy or littering to public demonstrations, vandalism, or graffiti. When an ASBO is successfully applied for and imposed, the subject of the order must comply with certain conditions – to desist a certain activity, observe a curfew, submit to supervision arrangements, or provide community service, for example. While the original anti-social behaviour is not subject to criminal penalties, a violation of an ASBO is a criminal offence that can carry a penalty of up to six months imprisonment. This flexible mechanism allows a wide range of behaviours – including planning or attending raves, persistent off-tune singing and the keeping of chickens – to be governed through crime without requiring that the activities in question be violations of the criminal law.

Governing through crime often involves the expansion of surveillant assemblages21. Crime  is employed as a governmental rationality to legitimate new and increasingly intrusive forms of surveillance that have broad implications. A good example of this emerged in early 2012, when the Minister of Public Safety introduced Bill C-30, whose short title is the Protecting Children from Internet Predators Act. The bill contains numerous provisions that would expand the abilities of policing and security agencies to obtain identifying information about citizens from Internet Service Providers (ISPs), without requiring a warrant. The bill would also require ISPs to install hardware that would facilitate electronic surveillance of customers. As is often the case, the draft legislation contains a range of different provisions that are intended to serve a variety of different purposes. It is a controversial bill that has serious implications for individual privacy. When Minister of Public Safety Vic Toews introduced Bill C-30, he sought to limit Parliamentary debate by employing the language of crime control. He argued that the bill was necessary to enable police and security services to track criminals and terrorists, and, speaking to fellow MPs in the House of Commons, he proposed that people “can either stand with us or with the child pornographers”.22 This is a clear example of a politician mobilizing crime discourse in order to provide “content for the exercise of power”23. Although the mobilization backfired in this case – public outcry over the Toews’ suggestion that critics of C-30 were in league with child predators caused the bill to stall – the use of ‘tough on crime’ language to advance a political agenda is often a successful means of governing. As Larsen and Piché note,

There appears to be an unspoken agreement about the rules of ‘tough on crime’ rhetoric, whereby the only politically viable response to the charge “My opponent is soft on crime” is to make vigorous assertions to the contrary, accompanied by gestures towards one’s own ‘get tough’ credentials.24

This argument echoes Garland’s observation that

Crime control “has become a prominent issue in electoral competition. A highly charged political discourse now surrounds all crime control issues, so that every decision is taken in the glare of publicity and political contention and every mistake becomes a scandal. The policy-making process has become profoundly politicized and populist.”25

Part III: Moving Forward

Crime is a powerful concept. As Simon notes, “[a]cross all kinds of institutional settings, people are seen as acting legitimately when they act to prevent crimes or other troubling behaviors that can be analogized to crimes”.26 Governing through crime allows for the mobilization of certain rhetorical devices and techniques of control. It makes it possible to re-cast complex social problems in a comparatively straightforward but value-laden framework. Over time, governing through crime leads to the expansion of certain institutions and industries – policing and security organizations, for example – which are called upon to manage an increasing range of social phenomena. Given the finite nature of resources, the corollary of this is the withering of institutions that are not seen as being capable of governing crime and managing its risks, and the narrowing of our imaginations when it comes to dealing with social problems.

The objective of this short article was to provoke and guide some critical thinking about the nature and meaning of the concept of ‘criminal justice administration’. It is my contention that this concept, while perhaps useful as a starting point for inquiry, is inadequate as a framework for organizing the serious study of processes of social control and the governance of crime. Additionally, I have proposed that we must contend with two interrelated phenomena: the institutions, organizations, and practices associated with the administration of crime control and security, and the ways in which crime control and security operate as frameworks for governing a wide range of social processes.

Since my intention is to ‘set the stage’ for critical scholarship, rather than present a fully-formed treatise on The Way Things Are, I will close by pointing out some questions that arise from my remarks.

What role should the concept of justice play in our deliberations? If we accept the argument that justice may not be the outcome or the objective of the processes we are studying, can we still regard it as an organizing principle for society? Or, are we operating in a post-justice paradigm, and if so, what are the implications?

How should we define crime, as a concept? The research on governing through crime and security emphasizes the elastic nature of the concepts of crime, threat, and risk, and the wide range of mechanisms that are used to govern them. Narrow definitions that remain grounded in criminal legal statues are unable to encompass the wide range of behaviours that are governed through crime.

What are the implications of governing through crime, in the contemporary context? Who does the governing, and who is governed? To what end? Are there alternative ways of thinking about and acting upon social phenomena that are preferable?

Notes

1 Cohen, Stanley. 1985. Visions of Social Control. Cambridge: Polity, p. 3.

Cohen offers the following working definition of social control:

“… Those organized responses to crime, delinquency and allied forms of deviant and/or socially problematic behaviour which are actually conceived of as such, whether in the reactive sense (after the putative act has taken place or the actor has been identified) or in the proactive sense (to prevent the act). These responses might be as specific as individual punishment and treatment or as diffuse as ‘crime prevention’, ‘public safety’, and ‘community mental health”.

2 Ericson, Richard. 2007. Crime in an Insecure World. Cambridge: Polity

3 Ericson, Crime in an Insecure World, p. 2.

4 Garland, David. 2001. The Culture of Control: Crime and Social Order in Contemporary Society. Chicago: The University of Chicago Press, p. 5.

5 An heuristic device is a term or concept that lacks precision but operates as an aid to exploration and inquiry. Heuristic devices can allow us to acquire and organize knowledge about an object or phenomenon of interest.

6 Garland, The Culture of Control, p. 5.

7 Valverde, Mariana. 2001. ‘Governing Security, Governing through Security’, in The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill, eds. R.

Daniels, P. Macklem and K. Roach, pp. 83–92. Toronto: University of Toronto Press.

8 Foucault, Michel. 1991. “Governmentality”, in The Foucault Effect, Studies in Governmentality, ed. Graham Burchell, Peter Miller, and Collin Gordon, pp. 87-104. Chicago: University of Chicago Press

9 Foucault, Michel. 2007. Security, Territory, Population: Lectures at the Collège de France, 1977-1978. New York: Palgrave Macmillan.

10 Foucault, Michel. 1982. “The Subject and Power”, Critical Inquiry 8(4): 777-795., p. 790.

11 Foucault, Security, Territory, Population, p. 99.

12 Garland, The Culture of Control, p. 5.

13 Simon, Jonathan. 2007. Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear. Oxford: Oxford University Press, p. 17.

14 Foucault, Security, Territory, Population.

15 Simon, Governing Through Crime, p. 4.

16 Giroux, Henry. 2009. Youth in a Suspect Society: Democracy or Disposability? New York: Palgrave Macmillan.

17 Giroux, Youth in a Suspect Society, p. 96.

Simon, Governing Through Crime, p. 210.

18 Newcomb, Alyssa. 2012. “Kindergartener Cuffed After Tantrum in Principal’s Office”. ABC News, April 17, 2012. [http://abcnews.go.com/blogs/headlines/2012/04/kindergartener-cuffed-after-tantrum-in-principals-office/].

19 Vancouver high schools have had police liaisons since the 1980s. They are a more recent addition to Toronto high schools, with many programs emerging in the late 2000’s.

20 Ericson, Crime in an Insecure World, p. 159.

21 Haggerty, Keven. & Richard V. Ericson. 2000. “The Surveillant Assemblage”, British Journal of Sociology 51(4): 605-622.

22 Ibbitson, John. 2012. “Tories on E-snooping: ‘Stand with us or with the Child Pornographers”, The Globe and Mail, February 13, 2012: [http://www.theglobeandmail.com/news/politics/tories-on-e-snooping-stand-with-us-or-with-the-child-pornographers/article545799/]

23 Simon, Governing Through Crime, p. 5.

24 Larsen, Mike, & Justin Piché. 2009. “Plus ça Change”, Journal of Prisoners on Prisons 18(1&2): 10-21, p. 11.

25 Garland, The Culture of Control, p. 13.

26 Simon, Governing Through Crime, p. 4.

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