Justice in the Risk Society
| Author | Les Johnston,Clifford Shearing |
| DOI | 10.1375/acri.38.1.25 |
| Date | 01 April 2005 |
| Published date | 01 April 2005 |
Clifford Shearing
Australian National University, Australia
Les Johnston
University of Portsmouth, United Kingdom
The punishment paradigm is attractive because of the parsimonious way
in which it integrates the instrumental and the symbolic features of
ordering.This paper examines the relationship between these features in a
context where risk and risk reduction are prioritised.The central question
motivating the paper is a normative one: What opportunities, if any, does
the explosion of risk-focused technologies present for minimising our
reliance on punishment as a technology for governing security? Our
contention is that the mentality of risk has promoted the exploration of
alternative technologies that call into question the tight coupling of punish-
ment with the governance of security. A key issue addressed in the paper is
whether it is possible for subjects to experience a sense of justice that is
not punishment-centred. Such a situation exists, we argue, in the case of an
initiative in the governance of security that one of us has been facilitating in
South Africa.
When an attitude is so deeply ingrained that in our thought we take it as unquestioned
truth, a serious and consistent challenge to that attitude runs the risk of ridicule
(Singer, 1975, p. 202).
We have borrowed our title from Barbara Hudson’s (2003) splendid new book. Her
topic, like ours, is the relationship between the instrumental and the symbolic features
of ordering within a context where risk and risk reduction are prioritised. Like
Hudson, we argue that examining the relationship between instrumental and
symbolic order is a crucial area of inquiry in understanding and shaping contemporary
ordering. Like her, we believe that rethinking the relationship between risk and
justice is a critical challenge for the governance of security. In exploring this challenge
we begin by traversing some well-trodden ground before branching off onto other, less
well-travelled, paths.
Punishment and Its Costs
Our central motivating question in this paper is a normative one, namely:
What opportunities, if any, does the explosion of risk-focused technologies present for
minimising our reliance on punishment as a technology for governing security?
Address for correspondence: Clifford Shearing, Research School of Social Sciences, Australian
National University, Canberra 0200, Australia. E-mail: clifford.shearing@anu.edu.au
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VOLUME 38 NUMBER 1 2005 PP. 25–38
CLIFFORD SHEARING AND LES JOHNSTON
Our reasons for focusing on this question are obvious. At the core of it is the simple
ethical observation by Andrew von Hirsch in his second ground-breaking treatise
on punishment and how it might be, and should be, justified: punishments hurt
those who must undergo them, and a decent society should seek to keep the
purposeful infliction of hurt to a minimum (1993, p. 4).
In addition to this critical ethical directive there are pragmatic and associated
reasons for keeping punishments and particularly our societies’ favoured form of
punishment, imprisonment, to a minimum. Prisons are not only places of ‘purposeful
infliction of hurt’, they are also very costly in both financial and other respects. As
these costs are well known we will do no more than illustrate them here using data
from Australia, Canada, Russia, South Africa, the United Kingdom and the US.
First, consider the evidence on the relative financial costs of custodial and
noncustodial sanctions. The figures in Table 1 relate to England and Wales.
In Canada, the situation is much the same. In 2000–2001, the cost of maintain-
ing a person in federal prison was $185.44 a day, while the cost of alternatives, such
as probation, bail supervision and community supervision work orders ranged from
$5 to $25 per day (Elizabeth Fry Society, 2002). A similar story is evident in
Australia, where the average cost per prisoner per day is $202.30 (Productivity
Commission, 2004). Other sentencing alternatives are substantially less expensive,
with periodic detention at $119, home detention $57, and parole, probation and
community service ranging from $9 to $4 per offender per day. (Bureau of Crime
Statistics and Research, 2002). These figures do not include the ‘one-off’ establish-
ment costs, which are, of course, much higher for prisons than for other options.
However, it is the social and human costs — sometimes unintended, but no less
hurt-inducing — that weigh most heavily. In England and Wales during 2002, 94
people committed suicide in prison, a 29% increase on the previous year’s total
(Howard League for Penal Reform, 2003). In Canada the average rate of self-
mutilation within penitentiaries is almost twice the estimated rate in the overall
population. In one Canadian study 59% of federally sentenced women reported that
they had engaged in self-injurious behaviour (Elizabeth Fry Society, 2002). The
Australian picture is no different. Here we find a level of mental health problems
and disorders three to four times higher among the prison population than in the
TABLE 1
Relative Financial Costs of Sanctions (England and Wales)
Annual costs
Community rehabilitation order
£3,000
Community punishment order
£2,000
Community punishment and rehabilitation order
£4,000
Drug treatment and testing order
£8,000
Intensive supervision and surveillance program
£6,000
Custody in young offenders institution (under 18)
£42,000
Adult custody
£27,000
Source: Rethinking crime and punishment (2002).
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THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
JUSTICE IN THE RISK SOCIETY
general population. Current statistics show that about 85% of inmates in NSW
have had an episode of psychosis, anxiety, substance-use or personality disorder in
the past year (Butler & Milner, 2003). Suicide is another major problem, with 39%
of female inmates and 21% of male inmates having attempted suicide during the
year 2002–2003 — a figure that has more than tripled since the 1980s (SCIPP,
2000, p. 16).
Another serious problem is the incubation and transmission of infectious
diseases such as tuberculosis. Russia’s overcrowded prisons have produced new drug-
resistant strains of tuberculosis that have spread among the general public. Here it is
estimated that 30,000 inmates leave prison each year with tuberculosis, one reason
why infection rates for the disease have tripled in the general population during the
last 10 years. In the USA the Federal Center for Disease Control and Prevention
has an office devoted to the issue of infectious diseases in prison. However, there is a
dearth of reliable data on the problem. Bureau of Justice Statistics indicated that,
nationally, 24,000 inmates were HIV positive in 1996, though a more recent study
by the nonprofit National Commission on Correctional Health Care put the
number as high as 47,000 — 10 times the rate in the general population (World
Health Organisation, 2004).
One of the most controversial issues concerns the number of inmates who are
infected with HIV and Hepatitis C while in prison through needle-sharing, acts of
unprotected sex or forcible rape. In one Australian study, 25% of New South Wales
inmates who were interviewed reported sexual assault, and a further 50% reported
other types of assault (Heilpern, 1998) A California-based advocacy group called
‘Stop Prison Rape’ has estimated that as many as 364,000 prisoners are raped every
year (Weed, 2001). Reyes (n. d.) makes two important points about the issue of
infectious diseases in prison. First, prisoners have certain inalienable rights
conferred upon them by international treaties and covenants, including a right to
health care and a right not to be infected as a result of inadequate prison condi-
tions. Second, it is now impossible to separate the problem of prison infection from
wider issues of public health when, as in Russia, there is an annual turnover of some
300,000 prisoners a year. In other words, while much of the brutality of prisons can
be kept within prison walls and held at a distance from the rest of the population,
this is not true of the bacteria and viruses that are incubated within them. They are
neither deterred nor incapacitated by prison bars.
All of the costs we have just identified are further magnified when prisons are
overcrowded. Overcrowding is endemic in much of the world and the likelihood of
this situation changing, given widespread poverty, is remote. Dirk van Zyl Smit
(2004), writing about South African prisons, provides useful data for what is by no
means an exceptionally poor country.
On 31 January 1995, the total prison population in South African prisons was 116
846. On 31 July 2002, it was 177 620. The total official capacity of the system at
these dates was 96 361 and 110 175 respectively. This means that the occupation rate
on 31 January 1995 was 121 per cent, and 161 per cent on 31 July 2002. These figures
assume a perfect distribution of prison population amongst the various prisons. Such a
distribution can never happen in practice. But even assuming that such a managerial
feat could be achieved, it means that on 31 July 2002, the prison service had to
accommodate 67 445 prisoners beyond capacity. This is an increase of 46, 980 prison-
THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
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CLIFFORD SHEARING AND LES JOHNSTON
ers compared to 31 January 1995, when the prison system as a whole was ‘only’ over
capacity by 20 485 prisoners (van Zyl Smit, 2004).
Further, van Zyl Smit goes on to say that:
…...
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