Electronic copy available at: http://ssrn.com/abstract=1472890

Sydney Law School

Legal Studies Research Paper

No. 09/84

September 2009

Governmental Criminology

Pat O’Malley

This paper can be downloaded without charge from the

Social Science Research Network Electronic Library

at: http://ssrn.com/abstract=1472890.

Electronic copy available at: http://ssrn.com/abstract=1472890

1

GOVERNMENTAL CRIMINOLOGY

Pat O’Malley

University of Sydney

The term „governmental criminology‟ immediately conjures up rather jaundiced visions

of the tame criminology developed, promulgated and often effected by government

institutions such as the British Home Office. Here, however, it refers simply to a rather

variable approach to criminology influenced by Foucault‟s work on governmentality and

the work of social theorists who have elaborated this into an analytical framework. Its

origins lie in the splash created when Foucault‟s Discipline and Punish (1977) was

parachuted into a critical criminology dominated by Marxist and symbolic interactionist

approaches. That it quickly had a major effect is hard to deny, although perhaps Stan

Cohen was exaggerating when he argued that by 1985 „to write today about punishment

and classification without Foucault, is like talking about the unconscious without Freud‟

(1985:10). Like most new frameworks of thought, it was taken up in criminology in

forms that were heavily and unevenly accented by the prevailing theoretical

environment. Garland‟s (1985) Punishment and Welfare, and Melossi and Pavarini‟s

(1981) The Prison and the Factory both deploy Foucault, but both end up broadly

rejecting his approach.

Nevertheless, it offered an immediate challenge to the existing critical orthodoxies. The

shock of this new approach may nowadays be hard to appreciate. In particular, official

knowledges and practices in relation to the governance of crime were no longer to be

regarded as illusory and distorting „ideologies‟, indeed the term largely disappears. Class

would be dissolved, race and – for a while - gender almost never mentioned, and power

would be radically reformulated as the articulation of rationalities and techniques.

Government would largely cease to be „the state‟ and become something that states and

many other agencies and subjectivities „do‟. The questions to be asked would no longer

Electronic copy available at: http://ssrn.com/abstract=1472890

2

be about the truth concealed beneath the surface, but about the truth at the surface: the

„truths‟ that government regimes claim to speak. In the process, „critique‟ would

disappear, if by that we mean the theoretically guided revelation of truth and of the route

to true freedom through theoretically guided government. In fact, both freedom and

government would become problems rather than answers. Clearly, to the extent that such

a Foucaultian criminology took hold, existing critical criminology would have to be

rethought. It is this new criminological project, which took well over a decade to take

definite shape, that I refer to as a governmental criminology – a criminology informed by

a Foucaultian „analytic of government‟.

The discovery of discipline.

In 1977, Foucault‟s Discipline and Punish: the Birth of the Prison, appeared in English

translation. Its focus was on discipline as a form of power: on the ways in which the body

was worked upon to effect normalisation – the closure of a gap between the individual in

question and a norm created as the proper or desired condition. In contrast to sovereignty,

which worked erratically but spectacularly to illustrate to power of the sovereign

command and the necessity of obedience, discipline worked through an economy of

force. With as light a touch as possible discipline sought to create docile but „free‟

subjects, whose learned self-discipline and self-reliance would make external intervention

unnecessary. Class and capitalism were rarely mentioned as factors in discipline‟s move

to being a central configuration of power (although they were given a role). Rather, its

emergence was argued to be historically contingent, the effect of a genealogical

convergence of ideas, interests, inventions, plans, architectures. In Discipline and Punish,

no theory explained the rise of disciplinary power; not much interest was shown in any

powerful interest that promoted it; and no functional necessity explained its position of

dominance by the 19th

century. Not surprisingly, this thesis met with very mixed

reception in the critical criminological environment of the late seventies. I will consider

two such leading responses in detail, one hostile, the other cautiously favourable.

A typical response from Marxist criminologists was the hostile critique provided by

Dario Melossi in his „Addendum‟ to the widely acclaimed The Prison and the Factory

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(Melossi and Pavarini 1981). His principal objections were twofold. On the one hand,

predictably, was „the book‟s almost total disinterest (sic) in the relationship between

discipline and the capitalist organisation of work‟. In turn this was a problem because for

Melossi „the process of exploitation/accumulation….is at the core of the microphysics of

power‟, that is, of discipline. Given that Foucault certainly did give the rise of capitalism

some role in the promotion of discipline, Melossi‟s concern evidently was that Foucault

did not place capital logic „at the core‟ of discipline‟s form and ascendancy. In his view,

Foucault misses the point that „power works within determinate conditions of which it is

itself a product‟ (1981:192-94). Discipline in this view arises because of its role in

creating and reproducing labour power. Melossi accepted grudgingly that „perhaps‟

Foucault had usefully clarified and defined the form of power. But by failing to assert its

underlying determinants in production relations, he was creating a political as well as

theoretical error, merely adopting an anti-materialist position that had become „a general

discourse of our epoch‟ (Melossi 1981:193).

The second and related objection was that Foucault virtually ignored the question of

resistance and especially class struggle. Foucault‟s focus on Jeremy Bentham‟s

Panopticon is seen to reveal him as something of a „map maker‟ (Melossi 1981:196). By

this Melossi meant that Foucault focuses only on the ideal plan of the panopticon, not on

what actually occurred in the prison and the factory. Melossi argued that in failing to

consider the impact of resistance and struggle, Foucault had merely provided a

misleading and two-dimensional account that represented history as if plans were simply

and straightforwardly realised. „Draw a map‟ says Melossi but „at least pose the

question: what clashes of war, what struggles have left their mark on the paper, what

forces keep changing and redrawing contours‟ (1981:196). This criticism has proven

remarkably durable, and late in the paper I will return to consider its accuracy and value. 1

If Melossi found Discipline and Punish unpalatable from a Marxist point of view, a

rather different gloss was placed on things by Stan Cohen. Cohen had already established

himself as possibly the most creative and least orthodox of the critical criminologists,

retaining rather more of the interactionist legacy of that approach and never really

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embracing Marxist theory. It was probably easier, but not without difficulties, for him to

accept much of the Foucaultian framework. As he expressed it himself

It is little wonder that theorizing about Foucault is so difficult…for many of his

critics he is not at all a Marxist but the most extreme idealist imaginable. I will

refrain from all such debate except to note here that what orthodox Marxists see

as Foucault‟s greatest weakness – his conception of power as a ‟thing‟ not

reducible to the workings of labour and capital – is, for my purposes, his greatest

strength. So I will use Foucault more or less uncritically, even though I am

altogether unsympathetic to the intellectual climate in which his work flourishes

and (being exactly the type of „humanist‟ he is always attacking) totally opposed

to his structuralist denial of human agency‟. (Cohen 1985:10)

The passage is interesting for several reasons, not least being the common interpretation

at the time that Foucault denied human agency as opposed to (as I would see it) not

wishing to descend into the sterile squabbles over the structure-agency binary. It could

certainly be argued that Foucault gives an inordinate amount of space to human

creativity, as his stress on the invention of the Panopticon suggests. Likewise, Cohen

raises another sociological binary, that between idealism and materialism, from which

Foucault was careful to distance himself and about which few critics would now be

overly concerned. It was, then, very difficult to untangle oneself from the prevailing

shibboleths of social theory, even for a criminologist of Cohen‟s independence of

thought. Yet Cohen had detected exactly what was to appeal about Foucault. At this time,

critical criminology was deeply concerned with the rise of „community corrections‟,

interpreting it in terms of the spreading tentacles of the expanding state (Abel 1981), or

conversely as a sign of „decarceration‟, an economising retreat driven by the fiscal crisis

of the state (Scull1978). It was a familiar, often contradictory, and always paranoid and

pessimistic tale that by the 1980s was beginning to wear thin. For Cohen(1985:8) in

„Foucault‟s extraordinary “archaeology” of deviancy control systems (w)e have here at

last a vocabulary with which to comprehend recent changes‟ .

Still, it was not to be an easy escape from prevailing orthodoxies of critical criminology.

Difficulties are illustrated in Cohen‟s own breakout, which had occurred with his

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pioneering and influential 1979 piece „The Punitive City: Notes on the Dispersal of

Social Control‟ . This began with a telling epigram from Discipline and Punish: „This,

then, is how one must imagine the punitive city. At the crossroads, in the gardens, at the

side of the roads being repaired or bridges built, in workshops open to all, in the depths of

mines that may be visited, will be hundreds of tiny theatres of punishment‟. (Foucault

quoted by Cohen 1979:339). Foucault‟s shifting of attention from who was wielding

power, and from the problematic of whose interests power was wielded in, allowed

Cohen and others to move criminology toward understanding that the prison, indeed state

itself, is not necessarily the principal target of critique. For Cohen, retaining the language

of interactionism, this target was to become „social control‟. Yet in „The Punitive City‟,

and at more length in his already foreshadowed book Visions of Social Control (Cohen

1985), social control appeared in two new lights.

First, while most criminologists‟ attention (then as now) had focused on the prison,

Cohen‟s contribution was that he used the new vocabulary of discipline to make sense of

the rise of community sanctions, community policing, and the „re-integrative‟ project that

was already coming to his attention. If Foucault had written of the punitive city, Cohen

argued, this had never been fully realised in practice, for discipline had been largely

contained in institutional contexts such as the prison (Cohen 1979:359). What

characterised the present era of „community corrections‟ was the dispersal of discipline

into what Marxists had termed „civil society‟.

Cohen pressed this further with his extraordinarily influential idea that the reach of

justice was characterised by an „expansion of the net and a thinning of the mesh‟ of social

control. Critical criminologists were quite ready to accept this analysis which still gelled

with traditional concerns with the domination of the powerful. But in another respect he

was not so influential. The focus on power as technique freed analysis from the

assumption that the task of a critical criminology was to reveal the „real‟ politically

repressive social interests and „system‟ at work beneath the visible surface. Cohen

introduced a surprising argument, in the context of current critical criminology. If power

were a process or technique, rather than something possessed by groups, then we could

6

not automatically assume that power was „bad‟. Now came the possibility that the agents

of social control were not „after all disguised paratroopers of the state‟, but „might be able

to deploy vastly improved opportunities and resources to offer help and service to groups,

which desperately need them. These possibilities must not be ignored for a minute…‟

(Cohen 1979:360). While Cohen‟s point was usually recognised, in many respects it

remained the case that the rush to condemnation is the hallmark of critical criminology.

Arguably this is still true even of what would become a „governmental criminology‟: to

detect positive possibilities and lines of flight in governmental practice (for example

techniques of risk) still appears almost bad faith.

My focus on Cohen, and Melossi and Pavarini follows from their leading roles, but they

are only exemplars of a much broader sea change that was beginning to take hold in the

shadow of the discovery of discipline. Deploying the model of the Panopticon in analysis

of the prison and of surveillance and control beyond the prison walls rapidly became a

new orthodoxy of sorts in the mid to late „eighties. Many criminological studies sought

to identify the operations of discipline in the institutions of criminal justice. In practice it

could often appear that the pervasive ethos of the old critical criminology had not been

disrupted, but merely translated: if once class domination had been the devil in the

machine revealed by theory, now discipline took its place. To reveal and delineate the

contours of disciplinary power became almost an end in itself.

From discipline to a governmental criminology.

In considerable degree, and despite some largely overlooked contributions that pointed

elsewhere (Bottoms 1983, Simon 1987, 1988), critical criminology the period up to the

early 1990s basically understood Foucault‟s work in terms of Discipline and Punish.

Thus while David Garland‟s (1991) overview of Punishment and Modern Social Theory

registered the significance of Foucault‟s impact by assigning it two lengthy chapters,

reference to Foucault‟s later and more sophisticated contributions with respect to security

and governmentality, and to the interrelationships between discipline and other

techniques of power, were peripheral and fragmentary. This is not a reflection on

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Garland, but more precisely is an index of the state of critical criminology at the time. All

this was to change quite dramatically in the following year with the appearance of two

papers – Feeley and Simon‟s „The New Penology‟ (1992) and O‟Malley‟s (1992) „Risk,

Power and Crime Prevention‟.

In his pioneering work on risk and governmentality in civil law and the risk society,

Simon (1987, 1988) had argued that actuarial techniques were already displacing

disciplinary governance. However, this development had largely escaped analytical

attention partly because, as in insurance, they were already familiar. More importantly,

he suggested, it was because actuarial techniques are unobtrusive. In Simon‟s view „the

unobtrusiveness is precisely why they have become so important; they make power more

effective and efficient by diminishing moral and political fallout‟ (1988:771). Simon

argued that whereas disciplines focus on the bodies and „souls‟ of individuals in

institutions such as the prison, school or factory, actuarial practices usually operate on

populations that are „much less institutionally or spatially defined‟. Instead of seeking to

bring individuals closer to an established norm through the application of corrective

interventions, actuarialism „alters the physical and social structures within which

individuals behave‟. Examples of this range from the humble speed hump to more

elaborate technologies such as electronic tagging and situational crime prevention. In its

turn this „increases the efficiency of power because changing people is difficult and

expensive‟ (Simon 1988:773). In this sense, actuarialism continued the work of discipline

but at lesser cost to power. „It is cheaper to know and plan around people‟s failings than

to normalize them‟ (Simon 1988:774).

While actuarial technologies had clearly been in existence for well over a century, Simon

suggested that their widespread application required the prior pacification of the

„dangerous classes‟ of the 19th

century. This had been the task of the disciplines. Once the

population has been rendered docile, and once it was no longer necessary to exploit

labour intensively, then the more „tolerant‟ but more „efficient‟ actuarial practices could

be substituted (1988:744). Finally, following Ewald (1986) Simon suggested that

actuarial practices have effects on subjectification. That is, actuarialism groups

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individuals together according to categories that do not derive from everyday life and

experience, forming solidarities that are more politically passive than, say, traditional

forms of worker solidarity (See also Defert 1991, Ewald 1991). The emergent

subjectivities are thus more isolated and politically vulnerable because as identity with

others diminishes, so do the possibilities or probabilities of collective resistance.

For most of our history, power has negated resistance by the subjectivities it

creates as a by-product in the very people on whom it is exercised. Without any

formal suspension of political rights our institutions are becoming more immune

from invoking political engagement. Actuarial practices are gradually forming a

surface over our institutions and social policy arrangements that a make them

nonconductive of political and moral charge.‟ (Simon 1988:798)

These is much more of value in Simon‟s two pioneering papers from the 1980s, still

largely overlooked by criminology. For the moment however, from the viewpoint of a

governmental criminology a key concern is how these ideas were picked up and launched

into the discipline four years later.

While the impact of Foucault had been widely registered in British, Australian and

Canadian criminological work (Rose et al 2006), this was much less the case in the

United States. Feeley and Simon‟s twin papers (1992, 1994) on the „new penology‟ and

„actuarial justice‟ went some way to changing this. They argued that criminal justice

developments since the 1970s were coalescing into a penology that was characterised by

three features. First was a shift away from therapeutic and retributive discourses toward

risk-based talk of probabilities and distributions. Second, these new discourses were

linked to changes in techniques that included abandoning the old principles of

proportionality between offence and sentence and inserting a new rationale of sentencing

according to the risk that offenders represent. These techniques no longer attempted to

understand individuals‟ pathologies, motivations and so on, but were concerned only with

behaviours. The new actuarial justice aimed at classifying and incapacitating high risk

offenders through either prison warehousing or newly merging techniques such as

electronic monitoring and house arrest. Third, in line with this, a new form of

managerialism entered official discourse. The old social science discourses linked to

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corrections were being replaced by systems analysis. „Success‟ was no longer measured

in terms of low rates of recidivism and implied rates of reform. Recidivism merely

indicated that the high-risk offenders had been correctly identified, that the parole system

had returned them efficiently, and that incapacitation had „worked‟ because it had

removed these ongoing risks from society. In a way, the problem was that they had to be

released. It followed that longer periods of incarceration were justifiable in the name of

public safety. What had emerged was understood as a „pure risk‟ approach, because it

emphasised neither reform, punishment or deterrence. It was concerned only with risk

reduction.

In turn, Feeley and Simon began to piece together a genealogy of this actuarial justice. At

the broadest level, following Foucault, they regarded this as part of a move toward

governmentality, in which „the population itself, in its biological and demographic sense

is taken as the target of power‟ (1994:177). Security, with its insurantial techniques and

focus on population distributions was becoming central to governance. Within the field of

justice, they linked this trend to shifts in tort law - toward its reliance on no-fault, strict

liability and insurance models. To this they added influences from the development of the

law and economics movement, with its utilitarian and quantitative reframing of criminal

justice. This undermined the morally and individually focused traditions, as also did the

related influence of systems and operations research as pervasive frameworks in

managerial practice. In all of this, they moved analysis away from any simple vision of

determination by nebulous „powerful interests‟ or requirements of a productive order,

toward a contingent genealogical focus. But this did not mean, as Cohen might have

objected, an „idealist‟ focus, for they equally suggested that a key factor in this

genealogy had been the development of an „underclass‟. Largely Black and Hispanic, this

class had been rendered surplus by changes in the economy, particularly the export of

much heavy industry to the Third World. Actuarial justice reflected the abandonment of

the welfare ethos that all members of society were recoverable. The new rationality

abandoned the project of „penal modernism‟, for in its vision there was nothing left in

economy and society into which these people could be reintegrated.

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The papers on „new penology‟ and „actuarial justice‟ had an enormous impact, especially

but not only in the United States. Feeley and Simon had been careful to stress that this

was not an epochal change – that it was just one trend in justice. Indeed, they pointed

specifically to factors that limited its reach (Simon and Feeley 1995). But in the way of

things, for many critical criminologists actuarial justice became the new touchstone. A

hunt for actuarial justice was set up, and of course found it in many contexts making

actuarial justice into something Feeley and Simon never intended to suggest it was – a

new „hegemonic‟ formation (e.g. Miller 2001, Kempf-Leonard and Peterson 2000).

Almost at the same moment that the new penology hit the US criminological newsstands,

„Risk, power and crime prevention‟ (O‟Malley 1992) appeared in the British theoretical

journal Economy and Society - at that time the theoretical test-bed for governmentality

studies. While (like Simon) relying extensively on Foucault‟s writings on

governmentality, O‟Malley‟s work was more explicitly influenced by the „Anglo-

Foucaultian‟ approach that was being developed by Nikolas Rose, Colin Gordon, Graeme

Burchell and others (Miller and Rose 1988, 1990; Miller and O‟Leary 1987; Gordon

1991, Burchell et al 1991). Such work had begun to map out a more explicit analytical

schema that reframed „power‟ as „government‟. Government was understood as the

articulation of political rationalities with the technologies they deployed in order to

resolve problems. Rationalities are the more or less schematic theories or „imaginaries‟ of

society which map out the nature of problems, how they are to be identified, what their

causes are, what kinds of subjects are involved and what the ideal outcome of

intervention would be.

Miller and Rose (1990) had argued that it was precisely this articulation of rationalities

and technologies that transformed discourse into government: government sought to

change the world, not just think about it. In turn because government rationalities and

techniques are closely integrated, they suggested it would be difficult to evaluate

programs of government in terms whether they „worked‟. Because governmental

rationalities set up different desired outcomes, and envisaged the world in such diverse

ways, it was usually difficult or impossible to find a criterion upon which „success‟ could

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be judged between rationalities. Hence, rising crime rates could register „failure‟ for one

rationality because they indicate more crime is occurring, or „success‟ for another

rationality because rates indicate the greater willingness of the public to report crime and

the greater efficiency of police in dealing with it. Given this, O‟Malley (1992) argued, it

could not simply be that where actuarialism was displacing discipline, it was because of

its demonstrable success or efficiency as Simon had argued. Rather, the shift from one

technology to another suggested that, in a way reminiscent of a Kuhnian paradigm shift ,

one vision of „the problem‟ of crime was being replaced by another - in turn changing

the nature of crime control techniques used, and providing new criteria of success or

failure.

For „Risk, power and crime prevention‟ (O‟Malley 1992) the answer to this conundrum

came in a recognition that it was not that risk was new, but that its configuration was

changing. Risk technologies had been central to the welfare state – particularly social

insurance. But these were not the risk technologies being promoted by the 1980s and

1990s. Quite to the contrary, these „social‟ risk technologies were under assault. It was

argued that we were witnessing the emergence of a newly ascendant technology of risk

linked to political rationalities hostile to the welfare state: neo-liberalism. Whereas

welfare liberalism had regarded problems of government as requiring intervention at the

„social level‟ neo-liberals emphasised the need to restore individuals to the centre. Social

governance and social technologies of risk management were regarded by neo-liberals as

creating a dependent population that had lost its enterprise. Neo-liberalism therefore

generated a „new prudentialism‟ in which risk management increasingly became a private

sector responsibility, and particularly a responsibility of individuals. This approach to

risk also reflected neo-liberals‟ emphasis on business principles, foregrounding

prevention rather than moral retribution after the event (O‟Malley 1992).

The ascendancy of crime prevention in crime control politics could thus be understood in

political terms rather than in terms of the relative efficiency of power. Consequently,

what was being promoted politically was not the traditional crime prevention focusing on

relative deprivation and linked to sociological criminology. Neo-liberals rejected this as

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another „social‟ response that weakened individual responsibility. Instead, contractual

„partnerships‟ and „contracts‟ between communities and police were promoted, such as

Neighbourhood Watch, and private security was fostered. Individuals were to be

„empowered‟: educated about crime risks and how to minimise them. In the process

reliance on the state – and responsibility for crime victimisation - shifted. This

„responsibilisation‟ of individuals was likewise linked to a change in the theory of

penology. In place of sociological explanations of crime, the business and insurance

model of the rational choice actor were favoured. In this imaginary, offenders appeared

as responsible for their actions and deserving of punishment. In turn, correctionalism

would be evacuated from prisons both because in business cost-benefit terms it had

„failed‟, and because this perpetuated the disabling mythology that individuals were

victims of social circumstance. Finally, victims, as the „customers‟ of crime control,

would be valorised. The burden of risk would be shifted from their shoulders, and

offenders would bear the burden instead, in the form of longer sentences that would

punish, deter and incapacitate.

In this way, the emergence of a new political rationality, with its particular vision of the

world and its problems, began a process of assembling new ways of understanding and

talking about crime. Novel techniques and routines were created or adapted for managing

it. Subjectivities were invented and borrowed, subjects who perform, suffer and resist

crime. Even new architectures and streetscapes, new devices and new knowledges were

mobilised to put it into effect. To talk of whether this „imaginary‟ of crime was „real‟ or

not was thus seen to be slightly to one side of things in governmental criminology. The

plan was empirically real enough, and an ascendant governmental rationality attempted to

make its elements real in practice, while its opponents attempted to prevent and deny this.

No matter whether governmental criminologists liked any of these developments – and

clearly none of the above commentators much liked what was happening - a

governmental criminology had no business imposing its own reality: for it could claim

no privileged access to the truth that allowed it to determine what was „in fact‟ right. This

would prove frustrating to many who looked to criminology to arbitrate and establish a

political program.

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Governing crime at the fin de siecle

The growing importance of governmentality in social theory, and the impact of

governmental studies of neo-liberalism and of risk in governance, meant that the latter

part of the 1990s was one of considerable development and elaboration in governmental

criminology. Risk was to prove one of the more active areas of such growth, owing much

to the landmark publication of Ericson and Haggerty‟s (1997) Policing the Risk Society.

There had been a number of governmental analyses of police in the period leading up to

this (e.g. Stenson 1993, O‟Malley and Palmer 1996), but by and large these worked over

threads that were familiar with respect to risk and to neo-liberalism. Policing the Risk

Society, however, was iconoclastic, attempting to merge the governmental approach with

the „risk society‟ thesis of Ulrich Beck (1992). Beck‟s thesis could be seen as almost

diametrically opposed to the tenets of governmentality, for it put forward a quasi-Marxist

theory in which the alliance of capital and science was producing catastrophic global

risks, which in turn created a mass „risk consciousness‟. This risk consciousness was said

to generate both a heightened sense of insecurity, as more risks were identified, and a

popular demand for increased guarantees of security.

Ericson and Haggerty‟s analysis began from this sociological foundation. Rather than

being focused upon governmental maps or imaginaries, Beck‟s thesis presents itself as a

sociological account of the world, linking a social theory to an empirical account of

consciousness and action among the population. As would be becoming clear,

governmentality distanced itself from such „grand‟ theory, from the epochal model

implied by the „risk society‟, and from empirical sociologies – focusing instead on what

Melossi contemptuously described as „maps‟. Undeterred, Ericson and Haggerty carried

out a sociological fieldwork analysis of how policing was performed in the risk regime.

Explicitly regarding this as a governmental analysis, they brought to the fore such things

as the ways in which risk-based incident forms compelled police to record offences in

terms of risk and security, the ways in which car-mounted computers regulated police

movements and so on. These developments, particularly the incident report forms, in

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turn, were argued to be shaped by the governmental rationality of the insurance industry

with its concerns for security and its insatiable need for risk-based information. In the

process, crime was shown to be governmentally recoded as risk. In short, Ericson and

Haggerty saw themselves as providing a governmentality „in action‟ – the enacting of the

techniques, imaginaries, discourses, subjectivities and so on. While all aspects of this was

not necessarily accepted by others (e.g. O‟Malley 1999a), it nevertheless demonstrated

that a governmental criminology could be treated (in Foucault‟s famous phrase) as part of

a „toolbox‟ for investigation. Governmental criminology already was beginning to be

articulated with rather different approaches that supplied analysts with what its earlier

exponents couldn‟t or wouldn‟t do.

At the same time, the approach was proving attractive to various feminist criminologists

(Valverde 1998, Hannah-Moffatt 1999,2001, Merry 1999). Hannah-Moffatt‟s work has

been particularly influential in this respect, taking as her focus women‟s imprisonment.

Following the Foucaultian view of power as productive rather than merely negative (cf.

Cohen 1985), she examined the governmental rationalities associated with a Canadian

attempt to create „woman-centred‟ prisons that would be more responsive to women‟s

needs and concerns. As she is at pains to point out, these programs emerge not just from

state sources, but in significant ways from blueprints that „adhered unequivocally to a

feminist philosophy‟ (Hannah-Moffatt 2001:143). As Lorna Weir (1996) had pointed out

before her, programs of government have to be regarded not simply as, for example,

„neo-liberal‟ or „feminist‟, as if these are antithetical and incapable of being assembled

together. Rather, rationalities are multivocal. That is, the genealogical form of analysis

takes into account the ways in which unexpected convergences and unanticipated hybrids

are assembled together and „rationalised‟. Specific programs should be understood as

such complex formations. In this way, there is a movement away from what David

Garland (1997) has pointed to as an „ideal typical‟ tendency in governmental

criminology: a tendency to regard models of government rationalities as expressing an

integrated logical form. At the same time, Hannah-Moffatt suggests that this is a key

process whereby government programs take on their own life and produce unanticipated

consequences. For example, how it could be that a program informed by „progressive‟

15

agendas, one that set out to provide women with „empowerment‟, „choice‟ and „healing‟,

could generate institutions that „inflict their own type of pain‟ (2001:189)?. She suggests

while the „feminized‟ prison is less repressive than its predecessors, „the darker side of

the institutionalization of women‟s concerns is the unanticipated redefining of women‟s

issues to make them compatible with the existing institutional arrangements of

incarceration.‟ (Hannah-Moffatt 2001:161). For example, the treatment of low self

esteem was held to reaffirm women-centredness, particularly women‟s shared

disempowerment and marginalization. However, in the penal context a „critical feminist

criminology of the self‟ was translated into a prudential prisoner who can „take

responsibility‟ for her criminal behaviour, for managing her own needs and minimising

risks to others (Hannah-Moffatt 2001:171-72). In turn, women who refuse this

„empowerment‟, or are unable to comply, are defined as uncooperative, defiant and more

at risk.

Criticisms and Advances.

This work suggests that while it had been the case that criticism was relatively muted in

governmental criminology (O‟Malley et al 1997), its articulation with a feminist analytic

generates an approach that creates critical possibilities without at the same time assuming

an independent and privileged access to truth. Instead, the critical potential emerges from

what Burchell (1993) refers to as diagnosis. Rather than resorting to revelation of the

truth through theory, there is a reading of what are termed „the costs to existence‟ of

being governed in certain ways. Reading from Hannah-Moffatt‟s work, it is not that an

underlying truth is revealed by theoretically recasting what is happening, finding the

concealed interests beneath the surface, or searching the discourses for contradictions. It

is the exposition of the rationales of government that makes clear which forms of

subjectification are created and envisaged, what techniques and routines these mobilise,

and thus what forms of existence the women-centred prison seeks to deliver. In a sense,

the analytical truth remains that truth claimed by the rationality under examination, and

by taking this seriously – or at least allowing a willing suspension of disbelief - its

16

implications are made visible through the analytical grid that governmental criminology

provides.

In such examples I suggest that the governmental analytic does not itself provide the

frame of reference in terms of which to evaluate this penal assemblage. If, as suggested

above, this is because evaluation is an approach internal to government (Miller and Rose

1990); then it could be argued that ethical evaluation must therefore be provided from

outside the framework. This would follow because the analytic itself is only an attempt to

render government intelligible in its own terms. The evaluation in Hannah-Moffatt‟s

case, by implication, comes from a feminist problematic. However, it is not clear that

such a process of articulation between governmental criminology and a „critical‟

approach such as feminism, is necessary to the production of what could be termed a

critical governmentality. It is not difficult to point to examples of governmental

criminology in which critical arguments are made apparently from within the

governmental analytic. For example, in his study of crime prevention in New Zealand,

Pavlich (1999:125) has pointed to a series of „dangers‟:

It is difficult to see how the neo-liberal reliance on enterprising, prudential and

egotistic selves can be reconciled with their postulated altruism in technically

engineered and managed „communities‟. This is especially the case in regulatory

environments that nurture parochialism of exclusion rather than compassion and

reconciliation, and which rely upon entrepreneurial self interests for their very

operations. In all this one may legitimately ponder the plight of justice.‟

Perhaps we could engage in an exercise of dissecting Pavlich‟s arguments in order to

detect some point at which an „outside‟ framework of criticism has been inserted into a

governmental analytic – for example via the terms „compassion‟ and „reconciliation‟ -

although what end this would serve is not immediately clear. The alternative seems to be

the essentialising of the approach by claiming that only instances where such analysis has

not been linked to criticism are to be taken as „correct‟. It could be argued less

obsessively that governmental analytic is capable of taking on a diversity of forms, as has

been seen already, and that no-one can legislate how it must be performed and what it

must or must not be articulated with. In any case, criminologists will and should use it as

17

they see fit. In such future innovative and iconoclastic usage, rather than in the endless

refinement and ossifying of its technique, is doubtlessly to be found the best measure of

its contribution to the discipline.

Indeed, the articulation of a governmental analytic to other approaches does seem to

answer a number of other criticisms that have been levelled against it. Garland (1997:

185), for example, complained that while governmental analytics mapped out the

assumptions and problematics of the governing agencies, „alongside this knowledge of

the authorities‟ knowledge I also want to be able to propose a different reading of what

causes crime, why controls are failing, and why penal-welfare measures no longer seem

adequate.‟ Probably most advocates of governmental criminology would wonder what

there is in the approach that would prevent this. After all, governmentality does not

pretend to offer any kind of analysis of crime, only of its governance. There is no

obvious reason why a sociological analysis cannot be articulated with a governmental

criminology in the way Garland proposes. Garland‟s (2000) own work provides an

example of exactly this project in his Culture of Control. There, frequent resort to

governmental analysis (for example 2001:117-131) is linked to analyses of why penal-

welfare programs do not seem adequate (2001:77-116). 2

Much the same point could be raised with respect to Melossi‟s now standard criticism

that a governmental criminology refuses to look at the implementation of policies. There

are certainly some statements to the effect that this is not a concern of governmental

analysis (Barry et al 1996, Miller and Rose 1990). But it is not clear how to interpret this.

In my reading, the concern of such commentators was that governmental analysis should

not become an empiricist sociology of the sort that does nothing other than map failures

to implement, at least if the sole purpose is to map out the current state of affairs in some

institutional context. As Miller and Rose (1990) accept from the outset, governmental

programs routinely fail to be implemented as planned, so this would not be an insight

alien to the approach. I would stress that, in any case, there is no problem with

articulating a governmental analysis of the program and a sociological analysis of

18

implementation in this way, and some excellent examples exist. (e.g. Kemshall 1998,

Kemshall and Maguire 2003).

Perhaps Melossi‟s concern, and the concern of similar critics, is based on an assumption

that a governmental analysis necessarily should examine plan and implementation: that

somehow the analysis of the plan is incomplete analysis. Certainly this fits with the

passages from his critique cited earlier in this paper. But this criticism misapprehends the

purpose of Foucault‟s original analysis, which was about a technology and a telos of

government that would have been taken up and translated in many different ways in

many different contexts. We could take this for granted without having to study a

multitude of examples, which in any case would reveal (as with sociology in general) that

in different contexts different specific patterns emerge. The concern of writers such as

Barry and his colleagues (Barry et al 1996), I suspect, was that such analysis takes us

away from the identification of the general framework of this kind of „power‟, not that

such analysis is invalid or even useless in itself. Indeed, as Miller and Rose were at pains

to argue, in one of the governmental analytic‟s formative papers,

unplanned outcomes emerge from the intersection of one technology with

another, or from the unexpected consequences of putting a technique to work.

Contrariwise, techniques invented for one purpose may find their governmental

role for another, and the unplanned conjunction of techniques and conditions

arising from very different aspirations may allow something to work without or

despite its explicit rationale. (1990:11)

This is, of course, nothing other than genealogical analysis focused in the

governmental domain, but it makes clear that a governmental criminology cannot and

does not deny the importance of the kind of work Melossi favours. Rose (1998) himself

has tracked the ways in which psychiatrists resisted the introduction of risk schedules and

in the process created a new non-numerate register of risk, a new technology. Thus while

Castel (1991) had argued that risk would lead to the subordination of clinical to actuarial

knowledge, Rose found that there is rarely a comparison of patients‟ risk scores to

statistical tables in order to generate probabilistic predictions.

19

Rather it entails calculating the consequences of a concatenation of indicators or

factors co-occurring in certain regular patterns. Even if clinical diagnosis has

become probabilistic and factoral, however, it is seldom numerical … mental

health professionals tend to resist the use of numerical risk assessment schedules

and classifications. They stress that assessment of risk is a clinical matter, and has

to take place within a clinical assessment of mental disorder… (Rose 1998:196-

97)

More significantly, Feeley and Simon (1995) deployed exactly this approach in

developing their work on actuarial justice. In examining the impact of this government

program, they were forced to ask the question of why the success of the „new penology‟

among criminal justice specialists had not been followed by a commensurate influence on

public discourse. Broadly speaking, they argued that the new penology failed in this

respect because its cool, risk-based, systems-analysis approach did not take account of

public discourse and the „irrational‟ demand for punishment and retribution. This answer

would have warmed the hearts of critics such as Garland (1991) who decried the failure

of governmentality to recognise the emotive side of the reaction to crime. Fortunately the

story does not end here.

Feeley and Simon‟s point in carrying through their analysis of implementation was

succinctly put: „we are writing a history of the present. Our aim is not to describe a

completed historical change‟ (1995:149). It is highly significant therefore that Simon

(1998, 2001) went on to analyse the rise of new techniques for governing crime through

risk, risk techniques that did embrace this „missing‟ emotive response. In such

developments as Megan‟s Laws, he argues, the „technical‟ and dispassionate character of

risk techniques was assembled together with elements that were consistent with a

„politics of vengeance‟ that had been salient in public discourses. In a nutshell, if it were

ever the case that governmentality ignored „resistance‟, or did not take cognisance of

emotive aspects of crime, this blind spot has been overcome. More than this, such work

reveals that – as Durkheim would doubtlessly have recognised – there is no discontinuity

between governance and the irrational (see also Pratt 2000a, 2000b). Simply because

there is a focus on the technologies of power – which Simon continues to embrace – this

20

does not mean that such technologies may not incorporate, even mobilise, appeals and

responses to the emotions. Simon (1998) makes this point explicitly when he refers to the

processes of incapacitation and community notification in Megan‟s laws and the like as

„managing the monstrous‟. In the „monstrous‟, a new feared and hated subjectivity is

created (or borrowed) and assembled together into a governmental problematic that

makes such techniques as community notification justifiable and plausible „solutions‟.

Indeed, Garland (1996) himself sowed the seeds in this respect, when creating his

distinction between „criminologies of the self‟ and „criminologies of the other‟. On the

one side, is a governmental imaginary in which crimes are normal, capable of being

committed by anyone – in the subjectivity of the rational choice offender. As such, these

criminologies of the self are linked with government techniques that incorporate

offenders – for example through „enterprising prisoner‟ schemes that seek to give self-

governing responsibilities to inmates (Garland 1997). On the other side are those

„criminologies of the other‟ that constitute offenders as outside the realm of normality,

offending subjects that government cannot tolerate and that must be met with repression,

incapacitation and denunciation. Moreover, as O‟Malley argued (1999b) such

criminologies and the technologies to which they are linked, can be aligned in the present

era with broader political rationalities. Criminologies of the self meld with neo-

liberalism and its rational choice offender and cost-benefit analysis of programs, while

criminologies of the other resonate with neo-conservatism and its moral crusade – the

two forming an uneasy alliance in New Right regimes.

In this way, a governmental criminology is brought back to an interest in ongoing politics

as struggle and genealogy that it may on occasions forget. Here, the arguably too-

monolithic and encompassing rationality of neo-liberalism has to be analytically

reconsidered, decomposed into components that are in tension, alliances that are fragile,

penologies that are „volatile and contradictory‟ (O‟Malley 1999b). It had probably

become the case that the construct of neo-liberalism presented a too-convenient, and too

internally consistent an anchor to which could be moored many techniques, subjectivities,

21

discourses and so on. 3

Perhaps its fragmentation is an important step in moving toward a

politics in which governmental criminology may play an active role.

A governmental politics of crime?

For reasons suggested already, a governmental criminology fits most uncomfortably with

a programmatic politics, a politics with a clear program driven by a „liberating‟ theory.

Too often these theories and programs have become just another layer of domination.

Part of the difficulty facing a governmental criminology, therefore, appears to be that it

can only generate a politics from the sidelines rather than one that is engaged in

constructing something „better‟. A decade ago, voices were raised from within

governmentality that complained about its tendency to abandon political engagement, of

the sort associated with Foucault himself. Instead it was seen to favour an overly

abstracted and academic approach, linked to its emphasis on politics as mentalities of rule

- with a concomitant weakening of emphasis on, and an engagement with, conflict and

contestation. To some degree, as this paper has indicated, aspects of this criticism have

been overcome. It is clear that the ongoing struggles around the formation and

implementation of political programs have been built into the approach. But probably the

most influential and considered call was that while this should not lead to a

programmatic politics, for which academics probably are ill-suited in any case, it should

form a knowledge that will assist social contestation. (O‟Malley et al 1997:512). Such a

modest goal takes its direction from Foucault‟s own emphasis on an agonistic politics, a

politics that maximises contestation and thus a politics that seeks to minimise domination

(Foucault 1982).

Arguably, in this respect, there has been remarkably little progress. Despite the fact that

the central call for such work – by O‟Malley, Weir and Shearing (O‟Malley et al 1997) -

is almost routinely cited in critical assessments, its message has been honoured primarily

in the breach. O‟Malley (2004) has indicated directions that can be taken with respect to

risk and criminal justice, most specifically by challenging the expert-dominated

definition of risks, and pointing to ways in which risk can be democratised. This would

22

include forming consultative bodies drawing together drug users, householders,

emergency workers, health agencies and so on. While it has to be said that it is not clear

how far such moves take us far past the neo-liberal strategy of a stakeholder politics there

has been little or no response to this intervention in the governmental literature. By far

the most significant contribution has been from another sympathetic critic, Clifford

Shearing. Following broadly similar „democratising‟ lines, Shearing has experimented

with models loosely based on restorative justice. For example, in South African

townships, the definition and practice of security has been passed to local Peace

Committees, bound only by certain procedural rules such as proscribing exclusion. Here,

the expectation is that contestation will arise, and a diversity of views aired, simply

because various subjects will appear at various times as complainants and defendants

(Shearing and Brogden 1993, Johnston and Shearing 2006). There are clearly similar

dangers here to those voiced in relation to restorative justice. However debate and

development on Shearing‟s very high profile experiments, from within the

governmentality literature, likewise has been minimal.

This is not encouraging. Even a strongly critical response to such initiatives might

generate a debate within governmental criminology that would lead to further

experimentation or, at worst, a clear exposition of why such forms of political

engagement are beyond the approach or inconsistent with its tenets. Is this silence a

freezing of political will and engagement brought on by the approach‟s mode of analysis,

is it a politically wise refusal, or is it just another accident of history that can be changed?

I think and hope it is the last of these, but perhaps in the last instance it doesn‟t matter so

very much. If it is an analytical approach, then it can be deployed without a project of its

own. It has already had its impact on other „criminologies‟ such as feminist analysis, and

the burgeoning surveillance literature that bundles it in with Deleuze, Baudrillard and

others, and as David Garland‟s work exemplifies, it has had a substantial impact on that

fairly encompassing but dynamic school of thought that still goes under the title „critical

criminology. A „governmental criminology‟ may thus have run its course as a distinct

entity and in a suitably genealogical way be morphing into other, as yet nameless,

criminologies.

23

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ENDNOTES

1 For other examples of this criticism, see for instance Garland (1991:170-73) and

Frankel (1997).

2 Indeed, it could probably be argued that Culture of Control exhibits close parallels with

Discipline and Punish which likewise mobilises questions of governmental genealogy

and historical interpretation - for example in its discussion of why sovereign responses

began to be seen as inadequate in the face of rising protests from the populace at the end

of the 18th

century. It could be argued, in this light, that Garland has provided a

genealogy of the current crime control scene which is itself in almost all respects

compatible with a governmental criminology. Thus when he refers to the „culture‟ of

control, it appears to be a governmental rationality of control, as seems clear in the

following summation: „The new culture of crime control has formed around three central

elements: (i) a recoded penal-welfarism; (ii) a criminology of control; (iii) an economic

style of reasoning. (Garland 2001:175). Virtually all, if not indeed all, of the last chapter

of this book could be read as a governmentality of current crime control. A sociology of

this topic, on the other hand, would have raised such critical features as the impact of the

War on Drugs on changing imprisonment patterns and sentencing assumptions, and even

more so, the impact of a racialised economy. Neither is given any attention in the book,

for which omission I suspect any self confessed governmental criminologist would have

been subjected to lacerating critique.

3 It has to be noted that while this criticism is vital, my own work has done much to

create its target.