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The Reinvention of Punishment – Neoliberalism and Youth Justice in the UK

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The Anglo-American concept of neo-liberalism with its focus on free markets and individual responsibility has pushed debates and social policies from a welfarist approach that was largely consensus in the post WW2 era towards a diverse set of more
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  18808 SA4C9 The Reinvention of Punishment Ð Neoliberalism and Youth Justice in the UK ÔThe Prison cannot fail to produce delinquents. It does so by the very type of existence that it imposes on its inmates: whether they are isolated in cells or whether they are given useless work, for which they will find no employment, it is, in any case, not to think of man in society; it is to create an unnatural, useless and dangerous existenceÕ (Foucault 1977: 266). 2050 words Introduction  The Anglo-American concept of neo-liberalism with its focus on free markets and individual responsibility has pushed debates and social policies from a welfarist approach that was largely consensus in the post WW2 era towards a diverse set of more punitive regimes (Muncie 2004). To me this poses two central questions: how does the conglomerate of the neoliberal discourse, the stricter penal system, and the increasing emotionalisation of the public debate fit into sociological theory, namely Foucault's discussion in ÔDiscipline and PunishÕ (1977), and what are the implications especially for young people in the UK.  With this essay I am not seeking to oppose the use of prisons as viable tools in  validating legal systems. However, given the growing centrality of prisons in criminal justice in the UK and particularly the alarmingly high numbers of detained youth offenders, it seems important to monitor and criticise current trends. I will firstly provide a brief evaluation of FoucaultÕs take on the development of modern penology, particularly the role of the ÔoffenderÕ vis-ˆ-vis society. Secondly I will evaluate how the emphasis on the liberal market economy has affected the discourse concerning crime in society on different levels, such as the growing presence of surveillance mechanisms, the tightening of welfare eligibility criteria and the perception of crime through the media. Lastly, I will look at how this discourse has affected particularly young people in the UK. Foucault and the Evolution of Punishment   The individualisation of punishment and responsibility (Garland 2001) and the introduction of prisons as both a visible part of social life and the main, even ÔnaturalÕ option of dealing with crime have been famously theorized by Michel Foucault. The  18808 SA4C9  widespread influence of his analysis of prisons makes him indispensable in any discussion of this field.  As the starting point of his analysis of the evolution of punishment he presents the importance of the body of the delinquent as the recipient of direct vengeance (Foucault 1977). Instances of direct violence against the criminal in the form of chaotic and highly painful ways of public execution are now relegated to legal history in most countries and most certainly in the UK. Nevertheless, it can be argued that certain elements of this practice, most notably the emotionally highly charged direct relationship between victim and offender (in the variation of placing the victim within society and the offender within a Ôrisk-groupÕ, as I will explain below) and the by-standing public have re-entered policy debates around dealing with delinquents (Sparks 2003, Garland 2001).  When looking at FoucaultÕs concept of disciplined Ôdocile bodiesÕ (Foucault 1977) as reflections of a society that operates in terms of functionality, the victim-offender relationship seems sidetracked in favour of the society-individual relationship. He argued that the intricate systems of control that emerged with the age of industrialisation Ð involving regulated classrooms and timetabling, disciplinary institutions for paupers, the classification of society, the heightened importance of military discipline and generally the constant observation of the individual by a widely diffused set of actors Ð all created individuals who were made to know their place in society and perform their productive tasks within in it accordingly (ibid.). Overall this assessment of modern penal history seems to imply a growing detachment of emotional involvement when it comes to legal proceeding against offenders (Sparks 2003, Garland 2001).  The penal-welfare-complex that emerged in the late 19 th  century (Garland 2001) was an important aspect of this rationale. Over the following decades public interest was measured against the offendersÕ rights and the pursuit of crime was delegated to a set of professional actors (ibid.). What crystallised was a Ôbasic axiom - the penal measures ought, where possible, to be rehabilitative interventions rather than negative, retributive punishmentsÕ (ibid.: 34). This ideal was reinforced with a judicial system that was explicitly egalitarian and highly regulated. The modern prison system that evolved from this framework reflected this rationality. Prisons were supposed to carry on the disciplining function of society, however, as my introductory quote illustrates, Foucault did not believe them to fulfil their corrective role in the srcinally intended sense (Foucault 1977). If prisons reproduce criminals, then  why has the prison system not been overcome as a failed exercise, but instead continues  18808 SA4C9 to gain popularity? I will move away here from FoucaultÕs evaluation of this question and instead try to apply it to current policy trends in the UK. The Rule of the Market and the ÔNew PenologyÕ  The current socio-political importance of the free market economy has had a strong influence on most aspects of social policy, and debates are shifting away from welfarist approaches (Muncie 2004). As the role of the state is taking on a growing responsibility of protecting markets and creating investor friendly spaces (Coleman and Sim 2005) the role of the citizen within these spaces seems to become increasingly aligned to feed market interests.  This discourse encompasses a number of factors. Disorderly behaviour has become a problem for the market, not anymore mainly for the social community (Coleman and Sim 2005). Responsibilities are diverted from the community towards a punitive state  who acts in a liberal economic interest (Coleman and Sim 2005). Antisocial Behaviour Orders (ASBOs) signify the practical policy implication of this strategy. Another important aspect of satisfying market demands for investor friendly spaces is the creation of a constant sense of surveillance through the installation of CCTV cameras, the increasing use of means of cashless payment and other tools that allow for the tracking of individual movements and behaviours (Muncie 1999, Muncie 2004). Through such means 'whole populations are made the object of preventive social control before any deviant act can take place' (Muncie 1999: 215). To justify policies of supervision and punitiveness we can see the labelling of aggregated groups of society as potential breeding grounds for criminal activity (Simon and Feely 1992) from which the public needs to be protected.  The increasing influence of market economic concerns on social policy making and the growing normality of constant surveillance go hand-in-hand with media representations that elicit support for these trends (Muncie 1999). Applied to questions of crime and 'antisocial behaviour' media coverage and political discourse have led to a public perception of crime in the UK being rampant and the key issue concerning communities   (Muncie 1999), even though statistics indicate a decline of criminal offences (Muncie 2004). While it could be argued that this has been directly fuelled by policymakers through the media, it also increasingly holds true that emotionalised public  voices are taken into account in policy making, particularly in issues of crime and punishment (Ryan 2005).  18808 SA4C9  The tightening of welfare eligibility criteria and the weeding out of long-term welfare dependent households (Muncie 2004) and young people growing up in low income families (Smith 2003) from the discourse of normative society into risk groups (Muncie 2004) run the risk of cementing borders of social exclusion. Those risk groups that act as the social ÔotherÕ, do not just carry the stigma of social exclusion but are also in danger of being criminalized as a group (Simon and Feely 1992, Muncie 2004). Mark Brown writes: 'Western governments have moved to excise a limited number of citizens from the field of political citizenship... these new penal subjects are placed outside the rights-based sphere of citizenship and are made subject to requirements and obligations that no ordinary citizen could be made to assume (Brown 2005: 283).  To go back to Foucault, after having dealt with the relationship of society-individual we are now presented with the society-risk groups relationship (Garland 2001).  A 'new penology' according to Simon and FeelyÕs seminal paper (1992) has emerged, at the heart of which lies the rising use of prison and the Ôspectacular shift in emphasis from rehabilitation to crime control' (Simon and Feely, 1992: 454) Young people in particular are affected by this trend. The UK and its Young Offenders   Within Europe, the United Kingdom is the country with the highest incarceration rate of young people under the age of 18 It is also the country with the youngest age of criminal liability (between 8-10 years) and the highest percentage of prisoners under 21 of the total prison population 1  While crime rates have been falling, the number of young offenders sentenced to youth custody has almost doubled between 1993 and 2002 (Muncie 2004: 169). The political motivation behind this has clearly moved away from the rehabilitation of the offender towards a growing reliance on incarceration as a means to protect the public. In 1993 the British home secretary Michael Howard stated: 'Prison  works. It ensures that we are protected from murderers, muggers and rapists... This may mean that more people will go to prison. I do not flinch from that. We shall no longer judge the success of our system of justice by a fall in our prison populationÕ (Ryan 2005:139, my emphasis). The theory of incapacitation sees the role of the prison not as a corrective facility, but to reduce crime by keeping enough offenders out of society long enough to make an aggregated impact on crime levels (Simon and Feely 1992). This aggregation can 1  With the exception of Turkey that counts between England and Scotland  18808 SA4C9 be further enhanced with sentencing guidelines that do not focus on the individual circumstances of the offender but instead on risk profiles (ibid.).  Young people in particular tend to be resistant to becoming docile bodies (Coleman and Sin 2005, Smith 2003) and thus form a significant part of risk groups. The official attitude towards young offenders has been captured by John Major in response to the killing of the child James Bulger by two ten-year-old boys in 1993: 'Society needs to condemn little more and understand a little less' (Smith 2003:32). Even though the abolition of the rebuttable presumption of Doli Incapax preceded the event, this case seemed to further justify the removal of the protection against full criminal responsibility for 10 to 14-year-olds (Muncie 1999). One of the outcomes is that some responsibilities  which previously lay with child protection and welfare agencies have now been taken over by criminal justice systems (Muncie 2004). To quote John Muncie: ÔVengeance and cruelty are no longer an anathema to criminal justiceÕ (2004: 159). This rings alarmingly like the bell of pre-modern penology as described by Foucault.  The treatment of young offenders in the UKÕs criminal justice system, has given rise to concern. The United Nations Convention on the Rights of the Child (CRC) (1989)  was ratified by the UK and stresses the importance of protecting children under the age of 18 from stigmatization and labelling which results from prosecution (Muncie 2004). Furthermore, it advocates alternatives to formal court procedures (ibid.) and states that the Ôbest interest of the child shall be a primary considerationÕ (ibid: 164). Adding to that, the 1990 UN Guidelines for the Prevention of Juvenile Delinquency point out that children should not be criminalized for minor misdeeds (ibid.). This sits uncomfortably  with the above mentioned policies regarding youth crime. Particularly ASBOs target young people for minor offences and the harsh prison sentences attached to a breach of an ASBO mean that ultimately non-criminal behaviour is punished the branding iron of a criminal offence (Smith 2003). Conclusion   Western countries, including the UK have come a long way since the days of painful public execution as an accepted form of punishments. The introduction of the modern prison system was meant to serve the purpose of reintegrating offenders into society after rehabilitating them and help create Foucauldian Ôdocile bodiesÕ. Mechanisms of supervision mean to serve the same outcome and have been widely put into practice in the UK and prisons continue to be on the rise. However, there has been an important
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