Theorizing the Performative Effects of Penal Risk Technologies: (Re)producing the Subject Who Must Be Dangerous

AuthorRobert Werth
Published date01 June 2019
Date01 June 2019
DOIhttp://doi.org/10.1177/0964663918773542
Subject MatterArticles
Article
Theorizing the
Performative Effects of
Penal Risk Technologies:
(Re)producing the Subject
Who Must Be Dangerous
Robert Werth
Rice University, USA
Abstract
This article explores the ways in which practices of risk assessment exert material and
semiotic effects that structure how penal subjects are constituted, imagined, and gov-
erned. In so doing, it proposes conceptual shifts in how we understand risk logics and
practices. It contends that techniques of assessment and classification within parole
operate performatively; that is, they do not so much describe reality as they constitute,
structure and alter what they appear to report on. While this occurs through shaping the
beliefs of penal actors – that is, through ideological mechanisms – this article focuses on
the ways in which assessments exert institutional, bureaucratic and automatic effects
independent of beliefs. I argue that, through exerting these effects, assessments make the
risk of paroled subjects an institutional and practical certainty. While the dangerousness
of individuals on parole is historically and ideologically contingent, contemporary prac-
tices of risk operate in a way that precludes the possibility of a non-dangerous individual.
Keywords
Criminal justice, parole, performativity, punishment, risk assessment
Corresponding author:
Robert Werth, Senior Lecturer, Department of Sociology, Rice University, MS-28, P.O. Box 1892, Houston,
TX 77005, USA.
Email: rwerth@rice.edu
Social & Legal Studies
2019, Vol. 28(3) 327–348
ªThe Author(s) 2018
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DOI: 10.1177/0964663918773542
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Introduction
Understanding penal subjects as dangerous, as individuals who represent a threat to
public safety and hence require penal intervention, is a complex socio-legal achievement
that involves multiple elements (Foucault, 1977, 2007; Melossi, 2000; see also Becker,
1963). It entails – and assembles – law, theories of criminology and penology, lay
theories and understandings, and media representations. It also includes techniques and
devices of risk assessment, which have expanded exponentially in the last two decades
and become nearly ubiquitous elements of penality. This article focuses specifically on
these practices of risk assessment and classification and traces the ways in which they
produce material and semiotic effects that structure how penal subjects are constituted,
imagined, and governed.
In so doing, this article proposes a theoretical reframing of penal risk assessment with
the objective of complicating and expanding our understanding of risk practices. Exist-
ing scholarship has traced the ways in which the assessment and classification of risk
can, and does, influence both beliefs and behavior in the penal realm (e.g. Grattet and
Lin, 2016; Harcourt, 2007; Petersilia and Turner, 1993, Werth, 2017; see Kemshall,
2011; Hannah-Moffat, 2013 for reviews). Yet, this article goes a step further as I argue
that risk assessments not only influence penal practices, they constitute and structure the
realm in which they operate and the targets (penal subjects) upon which they report. That
is, assessments not only describe the social world, they help create it. Focusing specif-
ically on parole, this article contends that classifications and assessments of risk partic-
ipate in producing an institutional and practical reality where individuals on parole are
inherently and always dangerous subjects.
While focusing on risk practices within parole, I will suggest that the arguments that
follow are relevant to risk practices throughout the penal realm. While risk is a multi-
vocal and somewhat contested term (Douglas, 1992; O’Malley, 2004), in the penal realm
it typically refers to the risk of criminal reoffending (Sparks, 2001), but it can also refer
to the risk of violating institutional rules or conditions that are not necessarily criminal
(i.e. technical violations).
1
By risk assessment, I refer to acts of classification, evaluation,
and/or prediction of the risk of penal subjects. This includes, but is not limited to,
actuarial techniques. Parole personnel utilize varied techniques to assess risk, including
actuarial risk assessment instruments, standardized (but non-actuarial) classifications,
and more ‘subjective’ judgments (Hannah-Moffat et al., 2010; Werth, 2017). In explor-
ing and theorizing these tools of risk assessment, this article draws both from previous
scholarship and from empirical examples taken from archival and ethnographic research
conducted by the author with parole personnel in California.
2
The central arguments are threefold. First, I contend that acts of risk assessment do
not only describe reality, they constitute, structure, and alter the reality that they purport
to describe. That is, penal risk assessments operate performatively. The concept of
performativity, developed by the philosopher Austin (1962), highlights that although
we typically think of language as describing facts or a state of affairs, it can make things
‘true’ by saying them. That is, discourses do not always report on an already existing and
objective world, they can create and/or impact the world that they ostensibly depict.
Specifically, I contend that risk assessments within parole automatically and universally
328 Social & Legal Studies 28(3)

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