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Crimcast is a virtual resource devoted to critical conversations about criminology and criminal justice issues. Our blogposts, twitter feeds, podcasts and other content provide an overview of trends, research, commentary and events of interest to criminal justice practitioners, academics and the general public. CrimCast is sponsored by The Center for Crime and Popular Culture, St. Francis College, Brooklyn, NY.

Filtering by Tag: Europe

When Punishment Was a New and Remarkable Thing: Medieval Anglo-Saxon Responses to Crime

Staci Strobl

Crimcast caught up with Dr. Jay Paul Gates (John Jay College of Criminal Justice) to discuss his and co-editor Dr. Nicole Marafioti's (Trinity University) edited volume Capital and Corporal Punishment in Anglo-Saxon England (2014, Boydell & Brewer). In the Middle Ages, Anglo-Saxon authorities often punished lawbreakers with harsh corporal penalties, such as execution, mutilation, and imprisonment. Despite their severity, however, these penalties were not arbitrary exercises of power. Rather, they were informed by nuanced philosophies of punishment which sought to resolve conflict, keep the peace, and enforce Christian morality. The ten essays in this volume engage legal, literary, historical, and archaeological evidence to investigate the role of punishment in Anglo-Saxon society. 

What prompted your interest in Anglo-Saxon punishment and how did this volume come about? 

Our interest in the topic of capital and corporal punishment grew out of basic questions concerning how the Anglo-Saxons – who inhabited and ruled England from the fifth century through the eleventh – thought about bodies in a legal context and how the body came to carry and convey meaning. We both love Wulfstan, that quirky eleventh-century Archbishop of York. His assertion that mutilation was a merciful alternative to execution—that the law must be concerned with the soul rather than the body—kept nagging us for attention. From here, we found contributors whose interests coalesced around Anglo-Saxon England. Yet the essays in the volume go well beyond the limits of England and the Anglo-Saxon period. Early Germanic and ‘barbarian’ law provide foundations; Mosaic, Irish, and Frisian law offer sources and analogues; and post- Conquest views of Anglo-Saxon England and Anglo-Saxon history show that the Anglo-Saxons continued to have relevance and meaning well beyond 1066.

One of the most interesting ideas to come out of the volume is that the Anglo-Saxons, at least initially, didn’t have much of a concept of punishment. There were systems of law, compensation, and vengeance, but these were all concerned with the maintenance of social order and stability rather than with the desire to punish unacceptable behavior. And when we came to think about it, the very concept of punishment itself seemed odd. After all, what does it do? For example, if Nicole lops off my arm, I am far better off if she pays me compensation for it than if she is punished. I might even forego compensation to get the satisfaction of vengeance. But punishment would leave me seeming weak and certainly unsatisfied: knowing she is in prison or doing back-breaking labor on a chain-gang is not going to satisfy me the way retaliation would. I’d also be short both an arm and a cash payment.

So, how did notions of punishment develop in Anglo-Saxon societies? 

Punishment seems to have developed under the influence of two major forces, the systematization of ecclesiastical penance and the centralization of royal authority. Christian responses to wrongdoing were surprisingly consistent with secular ideas of compensation. The penance known as “sick-maintenance,” for instance, required a perpetrator to do his victim’s work for him until he recovered—regardless of whether the injury was intentional or accidental. This was certainly good for social stability (the injury is compensated, the attacker shows he’s sorry, and no one needs to take vengeance), but there was also a real incentive to perform penance because it was good for the soul. The centralization of royal power also aimed to discourage vengeance and socially destabilizing actions. In fact, the earliest Anglo-Saxon punishments were designed to give people a chance to cool off and accept compensation in place of vengeance. Punishment becomes a new and remarkable thing, and kings only gradually assumed the right and responsibility of fixing other people’s injuries. It was only toward the end of the Anglo-Saxon period that kings claimed the authority to act on the body of a subject—a development that would have an important impact on post-Conquest English law.

 

 
Jay Paul Gates, John Jay College of Criminal Justice   

Jay Paul Gates, John Jay College of Criminal Justice

 

What ideas about punishment described in the volume appear to be persisting into modern Anglo-Saxon-influenced societies?  

The first point to note is that Anglo-American law, at least through the twentieth century, was very much influenced by the laws penned by Archbishop Wulfstan in the late tenth and early eleventh centuries. They were first taken up by the Danish conqueror king, Cnut, and then by the Normans after the 1066 Conquest. In those early laws we see a real tension between the need for the threat of punishment as a means of deterrence and penitential punishment as a means of rehabilitating the criminal, except in the most extreme cases. Such attitudes toward the role of punishment in the criminal justice system seem still to be hotly debated. Similarly, the restrictions on felons in modern American law, even after they have served their sentences, recalls the Anglo-Saxon notion of the guilty as being permanently marked, whether through the elimination of their legal status (oath-worthiness) or through mutilation. However, what seems to have slipped into the background in the modern discussion, and which is very much worth foregrounding again, is the medieval concern not just with punishing the perpetrator but making whole the victim.

What can this volume, grounded in the humanities, teach social scientists and criminologists about approaching studies of contemporary punishment? 

As we hear the modern debate, there are three main functions of punishment: deterrence, vengeance, and rehabilitation. To the medieval mind, I don’t know that there was quite so great a distance between these functions as there is for us, and it is perhaps worth returning to the mutually supporting roles of these functions in modern discussions. An example of this may come in the form of compensation laws and “sick-maintenance.” These two related legal categories are fundamentally concerned with how to make whole a victim. That is, after one person wounded another, he had to pay compensation for the injury to the victim (the compensation tariffs of Anglo-Saxon law remain the foundation for workers’ compensation tables) and then do the work that the injured person was unable to do until he had healed sufficiently. Certainly there is a sense of vengeance enacted on the man who must do the work of the person he injured—it must be a slight to one’s honor and sense of self to serve someone whom he had wanted badly enough to attack. Yet there is a process for the injured party to see his attacker work for his benefit and make good the injury. Through such a process there is a real possibility of the cooling of tempers, of reconciliation between the two parties, and of rehabilitating the public peace that was broken as well. Something like this has been tried in the restorative justice after the genocidal violence in Rwanda. But perhaps looking to the medieval understandings of punishment would bring punishment and restorative justice into more regular discourse within less extraordinary criminal justice processes.

What avenues of future research will this volume open?

At least one suggestion has been that the idea of crime might need to be re-thought. After all, if penance is concerned with sin and if vengeance and compensation are concerned with injury, what defines crime? What makes crime its own category of wrong and how might it be punished? 

Additionally, there is a focus on men in this volume, simply because so many of our sources represent injury as a predominantly masculine concern. However, it is also important to consider women’s roles in punishment. How involved were women in imposing or mitigating punishment? How were they punished for offenses they committed, and what exactly were those offenses? Although evidence for female misconduct is more elusive, there is valuable work to be done in this area. 

Contributors to the volume include Valerie Allen, Jo Buckberry, Daniela Fruscione, Jay Paul Gates, Stefan Jurasinski, Nicole Marafioti, Daniel O'Gorman, Lisi Oliver, Andrew Rabin, and Daniel Thomas.

Rehabilitation and Good Eats: London's The Clink Restaurant

Nickie Phillips

By Staci Strobl

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I like to eat and I support the ideal of the rehabilitation of offenders.  So what could be more perfect that The Clink Restaurant at Brixton Prison in South London?  I immediately made a reservation (in this case, well in advance because the prison must do its security checks on guests) for my husband and I to enjoy high-class dining, complements of inmates training as chefs, sous-chefs, and waiters.  I'll be perfectly honest: the concept is so grand that I was going to love it even if the food was bad.  But it most certainly was not.  Seared tuna on a bed of sesame oil and greens, Hake and mackerel fried medallions and thrice-fried chips, apple crumble, and fair-trade coffee.  Simply delicious.

The Clink is the third such restaurant opened in the United Kingdom in recent years.  The brainchild of Chef Alberto Crisci, and founder of the The Clink Charities, the prisoners work a 40-hour week, training towards the national certifications they need to enter the restaurant and hotel industries upon release.  Thereafter, they receive additional mentoring not only in securing job placement, but also with social and psychological issues that may trigger re-offending.

Anyone who has been keeping up with the rehabilitation literature knows that no one program fits all, but that in general, job training programs are the most likely to succeed with the biggest proportion of offenders.  And, according to the statistics provided by The Clink, and verified by an independent examiner, since its founding in 2009, the recidivism rates after one year of release are between 12.5% and 14%.  Compare this to the national average of 49% and it appears the program is a winner.  Granted, these inmates are selected for the program because they have the potential for success (and in that sense may not be typical of most U.K. prisoners), nonetheless, the success rates are quite suggestive that the program makes a real difference in prisoners' lives.

Could the model be imported to the U.S.?  Given the cultural emphasis on consumerism and work-- as in, there is something wrong with you if you can't consume because you don't have a job-- it would seem that the program would resonate for American prisoners as well, providing them an avenue for returning to mainstream society in a dignified way.  Unfortunately, the political buy-in from the public for such a program would certainly be harder to come by.  In the U.K., though there are strains and pockets of retributivism, they aren't as deeply engrained as they are in the U.S.  The British couple sitting next to us at The Clink speculated that at least half of Britons have a compassionate stance toward prisoner-integration programs, more so in an urban environment like London.  Alas, I am not sure half of the American population would be inclined to support such an intensive program which may provide better job training than that  to which the law-abiding citizen has access.

As a criminologist, I hope for a quality social science study of The Clink in order to glean out more clearly what works and how much it works.  I would do it myself, if I could ever find the time with my ten other projects in the fire.  But if anyone reading this needs a dissertation topic, it's up for grabs.

Bastoy Prison in Norway: A Humane Example of Incarceration

Nickie Phillips

Ana Luisa Crivorot, Guest Blogger

bastoy-prison-island

Imagine being on a beautiful island, in a bungalow where you have your own room with a laptop and television. You can sunbathe, jog, ride your bike, or take care of the farm animals. If you so wish, you may attend class, visit a well-stocked library, or earn any degree you desire. It sounds pretty idyllic, doesn’t it? To many it may actually sound like the perfect vacation. This all can be found in Bastoy an island in Norway. But Bastoy is not a college campus or a vacation resort, it is actually a prison.

Norwegian prisons are very humane and follow a high standard of living. Inmates have their own rooms, and have multiple opportunities to work, learn, or simply relax. Their accommodations are much nicer than most New York City apartments and their living standard infinitely times better than that of an average citizen in some developing nations. Your instinct may be that this all sounds too nice for someone serving a prison sentence, after all, this doesn’t sound too punishing does it? Even Anders Breivik, who massacred 77 individuals, mostly youths, in the summer of 2011, is eligible to move there after a portion of his sentence is completed. But, he must show repentance and a desire to rehabilitate himself in order to have that option. At the current moment Brevik has a three room suite in prison, equipped with his own small gym.

The official policy of the corrections system in Norway is that the only punishment to inmates should be the loss of liberty. Their day-to-day lives are supposed to be as close to the outside as possible and human rights are also a priority. Norway’s maximum prison sentence is twenty-one years, so it is understandable why preventing recidivism is a priority. Norway has one of the lowest recidivism rates in the world, 20%, comparable only to a few other Scandinavian countries. Bastoy’s recidivism rate is even lower, at 16%. Its residents include murderers and rapists, but prison officials insist that they are being taught responsibility and to care for themselves and others. Norway’s incredible recidivism rate should be enough to convince many of the merits of such a system.

This is the second of two Crimcast blog posts exploring prisons in Norway.  See also Valeriy Kipelov's post on Norway's approach to prisons and punishment here.

Mugshot

Ana Luisa Crivorot is currently pursuing a Master's in International Crime Justice at John Jay College in New York City. She graduated from New York University with a double major in Psychology and Politics and hopes to pursue a career in Law Enforcement. Ana is originally from Brazil and is fluent in Portuguese and Spanish.

An Exploration into How Risk-Based Security Policy Depoliticizes Counter-Terrorism Measures

Nickie Phillips

NTAS

Part 3 of 5 in a series on Risk-Logic and the War on Terror

Aditi Gupta, Guest Blogger

The impact of the dynamic outlined in last week’s post (decoupling of political decision-making from actuality) is linked to the second dynamic put in motion by the application of risk-logic to govern terrorism in the UK: depoliticization. The governance of terrorism is essentially stripped of any politicized concern from the public as the interlinked rationalities that drive the Dispositif of Precautionary Risk (pre-emptory mode of governance) enable policy-makers to present security issues as something that needs immediate attention, leaving no time for reasoned debate.

Furedi (2005) explains that this presentation of issues is inextricably linked to a ‘politics of fear’ that overshadows informed debate, thus depoliticizing security issues. De Londras (2011) shows that in the aftermath of an attack, the desires of both the state and the people come together to create a politico-legal space where repression is possible. In the UK this process was triggered by fear following the traumatic attack on London underground transport on 7th July 2005 (7/7) by Yorkshire-born suicide bombers. This legitimized the DPR’s (mode of risk based precautionary governance) central rationalities of worst-case-scenario-thinking and risk of serious and irreversible damage and thus justified the deployment of technologies of zero-risk.

Handwritten letter of condolence after the 7/7 attacks (Photo: Stephen Hird— Reuters/Corbis)

As Johnston (2005) notes, many of the raft of new powers that were introduced after 7/7 were previously sought by the police. However, it was the aftermath of the attack that ‘changed the political environment within which they debated’, allowing for the acceptance of new anti-terror measures to inflate police and executive power. Thus, the ‘politics of fear’ that underlies the dynamic of depoliticization engendered by this risk-based governance can be argued to be a major force in the acceptance of policies that require unprecedented levels of government intervention.

The rationality of zero-risk, however, is one that is self-perpetuating as it drives the imperative to act, to present the terrorist threat as controllable. However, this threat is incalculable according to traditional statistical models of risk based on what is ‘abnormal’. Thus, the fetishization of control that emerges of out the DPR mode of governance's combined rationalities is based on an imagined creation of the terrorist ‘other’. This has translated itself in the UK in two interlinked social constructions that set in motion the dynamic of depoliticization: that of the afore-mentioned panoptic screening process for potential terrorists presented as fair and objective; and the creation of a calculable, controllable Muslim ‘terrorist’ to create a visible target of control.

Amnesty International United Kingdom (AIUK) argues that the extreme circumstances presented by 7/7 allow governments to depoliticize mass surveillance by claiming it ‘treats all citizens the same’, and ‘if everyone does the right thing…then they have nothing to worry about’. However, as outlined in my first post, this front of objectivity obscures fundamentally value-laden choices. The introduction of RIPA in 2000 saw mass surveillance with nearly 444,000 authorizations for communications data between 2005-2006, and techniques such as data mining, cross-department sharing or ‘profiling’ that allow seemingly innocuous data to suggest tendencies that might target the individual for suspicion. The Information Commissioner regarded this practice so depoliticized that we are ‘sleepwalking into a surveillance society’ (Crossman, 2007). Indeed, even after the vast reach of the NSA PRISM scandal and revelations of TEMPURA (mass surveillance databases laundered between the UK and the US) were exposed, polls indicated that the majority of Britons still valued the protection that they felt surveillance afforded them. Thus the dynamic of depoliticization hides the penetrating nature of these surveillance policies through a front of objectivity.

The construction of the Muslim ‘terrorist’ is propagated by the UK Counter-terror strategy’s unambiguous identification of the ‘new’ threat of terrorism coming from Islamists, thereby explicitly linking Islamists and terrorism (HM Government 2006:1). This has been supplemented by a discursive construction of the Muslim community as suspect: ‘few terrorist movements could have lasted for long without a supportive community’ (cited in McGhee 2008:69). This discursive creation by its very nature depoliticizes every single policy, strategy and risk technique deployed within the DPR because, in targeting a minority, it has ensured that the majority of the population does not feel politically or socially threatened by this form of governance.

How this dynamic effects resistance: power dynamics

Through Foucault’s governmentality framework we can see the constant flux not only in the dynamics of power, but in the technologies that are deployed as part of the DPR mode of governance. O’Malley (2008:69) argues that ‘resistances shape existing risk techniques and practices’. Thus, Selchow’s dynamics engendered by the DPR are not simply an effect of a mode of governance through risk but articulations of the constant negotiations between the multiple networks of power active within the state’s journey to its goal of zero-risk. This dialogue is most clearly seen by the deployment of the technology of secrecy in order to safeguard the discourses and technologies of the DPR. For example, Reprieve points to the introduction of the Justice and Security Act (JSA) as a ‘response to the efforts of human rights groups to hold the UK to account’ for its complicity in rendition and torture cases.

binyam

The JSA pulls together all three areas of UK pre-emptive counter-terror policy: detention, surveillance and complicity in extraordinary rendition. It stipulates that cases involving ‘sensitive’ information pertaining to security need to be tried in secret, using closed evidence that the defendant is not allowed to see. Therefore, those suspected in the War on Terror are stripped of their right to fair trial (Bowcott & Cobain, 2012). It is thus revealing that the JSA came into being due to the legal action of Binyam Mohammed against the UK Government, backed by Reprieve, for their complicity in his rendition and torture. As CagePrisoners asserts, ‘independence and transparency are the key to dealing with problems within society – the JSA is the perfect example of how the government is going in a reverse trend to this’. In general, abuses are very difficult ‘to get the slightest information about’ (Reprieve Interview). This evidence-gathering strategy is thus essentially emasculated if it is not possible to obtain evidence, or even to challenge the evidence put forward by the government in security cases as access to it is now blocked by the JSA.

The failure of the human rights organizations  (HROs)to challenge the JSA reveals the powerful depoliticizing force that the construction of the Muslim ‘terrorist’ represents. All of the HROs interviewed acknowledged that a significant factor in their failure to defeat the JSA was the fact that people ‘don’t think it will affect them’ (Reprieve Interview). Reprieve detailed that Ken Clarke, the U.K. Justice Secretary, argued that the closed evidence mechanism would only have ‘narrow’ use, and that ‘people accept that’. This is because the non-Muslim majority have not felt negatively affected by any of the counter-terror policies that have been rolled out.

This narrow focus is seen by all four HROs as a barrier to reaching the non-Muslim population; in the ‘battle for truth’ regarding the JSA, AIUK laments that the government ‘put forward a very compelling narrative’ that argued that this bill ‘will make things fairer’. Both Liberty and AIUK illustrate that this depoliticized narrative was much harder to challenge as the political argument against it now had to use very technical legal concepts to explain why it was actually inherently unfair. If the majority of cases affect only Muslims, then this explains why the profound social impact of giving up the guaranteed right to a fair trial has not gained traction as a wider societal issue.

This disproportionate effect on Muslims is compounded by the dehumanization of this suspect community, thus legitimizing these measures. As AIUK indicates, the depoliticization engendered by the DPR allows for exceptions for a discursively created ‘bad’ people who do ‘bad’ things. Indeed, CagePrisoners sees the legitimization of these measures as a by-product of the ‘demonization’ of Muslims. He sees the essential criminalization of the Muslim community as based ‘on an assumption of what [the government] thinks we are’ due to a paranoia of ‘who we are’ and ‘what we believe in’. CagePrisoners’ impassioned response was given a sharper edge in their example of a government list of children ‘at risk of extremism’ with one child less than three years old. It is assumptions like these that feed back into the DPR technology of surveillance assemblages that submerge individual cases into types, creating new risk assessed identities based on these broad categories. Thus, in the UK, depoliticization follows Krassman’s (2007) observation that it is no longer necessary to actually see the person one judges. Indeed, from the perspective of power-relations one can see that HRO attempts to humanize policies results in aggressive response. As Reprieve states, ‘they do turn around and come after you’ if you break ‘the unwritten rule of “never make the prisoner human”. In Reprieve’s case, aggression was precipitated by the level of success they had achieved in showing the human costs of Guantánamo by publicizing the hunger strike. Reprieve’s viral video that showed rapper, MosDef, being force-fed in a Guantánamo jumpsuit brought the brutal human impact home to thousands of viewers.

mos def

Therefore, the main effect of the dynamic of depoliticization is that the majority of the population does not feel affected by counter-terror security policy due to the dual construction of a terrorist Muslim ‘other’ and seemingly objective screening process. Burchell (1991:146) argues that individuals only feel affected when ‘the way they are governed requires them to alter how they see themselves as governed subjects’; it is only then that we become aware of the ways the political power of the state impinges on our lives, that ‘we feel it’. Ultimately this means that the counter-arguments to security policies engendered by risk-logic are not just forced to prophesize the future, but due to their narrow focus, have to campaign in the realm of the social imagination.

Aditi Gupta

Aditi Gupta graduated with an MSc in Global Politics (Civil Society) from the London School of Economics and Political Science in Autumn 2013.  She has previously worked at Soul Rebel Films and Reprieve and has co-authored reports based on depth interviews conducted for the Indian development NGO, CHIRAG. Aditi has volunteered for refugee and homeless organizations in the UK and is developing a career in the human rights field. This is the third in her five-part series on Crimcast which began in early January, 2014.

What the U.S. Should Learn From the Norwegian Prison System

Nickie Phillips

Tromso-city-winter-Norway-740

Valeriy Kipelov, Guest Blogger

Having realized that prison trends are pretty sad in the U.S. (mass incarceration), I tried to find an answer to this question: Is there a country in the world that deals with criminal offenders more efficiently than the U.S.? The answer popped up quickly. That country is Norway, and here is my reasoning.

Norway is a rich, highly developed democracy. It has a wide range of natural resources, a huge territory for quite small population of just five million people, and – most importantly – it has rich human capital and a strong respect for law and public order. That order to a great extent is reflected in something quite unique to Scandinavian countries, their approach to prisons. Just read what one Norwegian prison official said during an interview: We don't look at our inmates as criminals,but rather as regular people who have committed a crime. This idea of treating inmates as regular citizens who must (with professional help of the governmental institution) be rehabilitated and eventually brought back into normal society, is in my opinion very simple, yet amazing. Such a philosophy is actually the key to this country’s unbelievable rehabilitative successes.

norwegian flag

In Western countries deprivation of freedom was once believed to be the harshest way to punish criminals. So, deprivation of freedom is already itself a punishment and the main idea thereof: locking offenders up, so that they have a certain amount of time to reflect, to fully realize the gravity and negative effect of their actions. Aggravating the deprivation of freedom with collateral hardships, which are by the way not necessarily legal or moral, is not only unjust, but also counterproductive. The goal of a well-functioning society is to manage crime rates and keep them low by promoting and running effective criminal justice systems. This is exactly what the Norwegian authorities have been able to do during the last few decades, and what we, the United States, are so far not capable of doing.

Look at some self-explanatory statistics: The incarceration ratio per 100,000 is 72 in Norway and 716 in the US. So, we are at the number one in the world in terms of incarceration rate, whereas they, the Norwegians, are at number 176; Murder rates -- 0.6 murder cases per 100,000 citizens in Norway, 5 per 10,000 in the U.S. Finally, the most self explanatory piece of data – the recidivism rates; 68% in the U.S., 20% in Norway.

Now that it is evident that one country is much more successful in deterring recidivism than the other – how is it possible in practice?  A Norwegian criminologist Nils Christie introduced his own theory that states that every offender deserves "re-socialization.” In Norwegian state prisons such as, for example Bastoy or Halden, they try to re-socialize the inmates through forestry work, gardening, and taking care of the animals. This type of work is believed to have the most pacifying and rehabilitating effect.

Norwegian criminologist Nils Christie (Photo: www.universitetsforlaget.no)

An interesting fact: all Norwegian corrections officers work without weapons, which would probably sound crazy for an American correctional officer. The reason is that weapons create the atmosphere of hostility and aggression that guns normally imply. And one of the main tenets of Norwegian penitentiary system is the like-home environment inside the prison, which has proven to be effective in reforming the inmates. You probably remember the most famous Norwegian terrorist Anders Behring Breivik who killed 77 people a couple of years ago. That guy, despite the atrocity that he committed, is not rotting in some dungeon. He enjoys himself in Halden prison, where he has a cozy room (instead of a dirty cell), tasty whole food, world-class healthcare, all sorts of amenities including the Internet and television, plenty of free time and even the possibility to earn another higher education degree.

Shocking? Halden’s wardens say they don’t see anything unusual about this approach. The formula of Norwegian success seems clear: you treat inmates as regular people, promote and create a culture of respect within all prisons – and you have less inmates re-entering the system; you treat them harshly, in an inhuman way and without providing for their basic (or even – advanced) needs, allowing violence in the cells and in prison yards – you get more hardened criminals full of hatred, who will never ever return to normal life, and will most likely come back to the lockup again and again.

Different countries highlight different goals of punishment. Norway, as we now clearly see – puts rehabilitation at the top, and this concept pays off exceedingly. I truly believe that the U.S. needs to seriously consider adopting the Norwegian prison model. Our prison population keeps growing. We build more and more correctional institutions and promote the culture of control-- and it has to be reversed.

At the same time I fully realize how much must happen before American society shifts its point of view and accepts such a radical and liberal policy transfer. The cultural differences are huge. The U.S. is a highly diverse, multicultural nation, while about 86% of Norway citizens are ethnic Norwegian, which makes it a much more homogeneous state than the US. It is surely much harder for the American people of wide variety of cultural/ethnic backgrounds to reach some consensus; we don’t have anything remotely liberal in our prison system, while they, Norwegians, have had such a modus operandi for decades.

The U.S. could technically afford liberalizing by decriminalizing certain petty offenses, incarcerating less people, and directing the saved funds to rehabilitating purposes, similar to the Norwegian approach. But this would require clear realization of such necessity and sincere political will. You bet: building golf fields for rapists would not be the best line in a politician’s election campaign. So, the shift in our mindset would require the public will and a lot of political and educational work. Incarcerating more offenders means killing the symptoms of the social disease; rehabilitating the offenders and cutting the recidivism rate means curing that disease. And we need to make the right choice when reforming our prison system.

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Valeriy Kipelov was born in Debrecen, Hungary, and raised in Kiev, Ukraine. He lived in Germany for a year and earned a BA in Linguistics (English, German, Ukrainian) from Kiev National Linguistic University.  He also has a BA in Criminal Justice from John Jay College of Criminal Justice.  Currently, he is in the MA Program in International Crime and Justice at John Jay College. He has worked as a news anchor/reporter for RTVi, a Russian television station in NYC. Kipelov is pursuing a career in U.S. law enforcement. 

When Security Decision-Making Becomes Estranged from Actuality

Nickie Phillips

NTAS

Part 2 of 5 in a series on Risk-Logic and the War on Terror

Aditi Gupta, Guest Blogger

In my previous post, I outlined the four dynamics set in motion when we think of security threats through the prism of risk-logic. This post will zoom in on the first dynamic, ‘decoupling political decision-making from actuality’ and show how this frame of thinking has a profoundly social effect on our everyday lives and the way we recognize and engage with the threat of terrorism.

You may be thinking at this point – what does this have to do with me? It’s the government’s prerogative to protect us, and they call the shots – not me. In order to illustrate how the infiltration of risk-logic in security practices not only affects us, but changes the way we conduct our lives, I am going to demonstrate how power relations at the ground level as well as the governmental level are affected. I will do this by looking at the work of United Kingdom-based human rights organizations who try to combat the curtailment of freedoms post-9/11, as they engage with the general public as well as governmental authorities. This will be based on interviews with Amnesty International UK (AIUK), Reprieve, CagePrisoners, and Liberty.

The utility of viewing risk-based governance in terms of power relations:

foucault18

It’s useful to view the impact of risk-logic in security practices through the lens of Foucault’s governmentality thesis, whereby power is seen as a circulatory phenomenon rather than something that is ‘held’ by any one entity (Foucault 1990: 91). In other words, power relations are as important at a governmental (macro) level, as they are at the grassroots (micro) level. Foucault defines modes, or assemblages of governance as a ‘dispositif’ of governance. This consists of rationalities (ways, or frames for thinking about policy) and technologies (tools, practices and policies that are used in governing) of governance that encompass the efforts of those in power to account for ‘the authority of their authority’ (Aradau and Van Munster, 2007:15).

This governmental attempt to justify their right to power is done through discourses of knowledge which are in turn facilitated through everyday social practices enacted by ordinary people. Through this Foucauldian framework it is possible to see the role of human rights organizations’ resistance to risk-based counter-terror policy in what Foucault calls ‘the battle for truth’. This is not a battle for an absolute truth, but ultimately about the rules that dictate how true and false are separated (Rabinow 1984:74). It is through this lens that we can see how Selchow’s four dynamics are central to the constant negotiation of the dynamics of power that circulate the Foucauldian ‘regime of truth’ that makes up governance.

Burchell (1991:144) suggests that modern politics is characterized by an oscillation between a ‘suspicious fear’ of state intervention in our lives, and a ‘demand that the government will respect our rights whilst taking responsibility… for sheltering us from insecurities and dangers’. It is in this space that the social impact of risk-logic can be clearly seen, between those who suspect the government of over-reaching their power and those who believe it is protecting them, thus participating in risk-based security practices.

It is in this space that we can locate and examine the resistance carried out by UK human rights organizations to counter-terror policies, thus illustrating the very real impact that risk-based security policy has on our everyday lives.

Zooming in on the first dynamic: the decoupling of political decision-making from actuality

The Foucauldian dispositif of government (or mode of governance) we are seeing post-9/11 is one that Aradau and Van Munster describe as the ‘dispositif of precautionary risk’ (DPR), as opposed to previous forms of risk-governance. While previous dispositifs of risk centred on identifying, preventing and containing existing threats, this new DPR instead seeks to pre-empt risks through active engagement of the population, thus setting in motion Selchow’s four dynamics.

Selchow’s first dynamic, ‘the decoupling of political decision-making from actuality’ - that is engendered by the DPR - thus echoes this new dispositif post-9/11. This can be seen clearly in the U.K. through the Police National Legal database’s (PNLD 2009:85) assertion that ‘given the current level of threat from international terrorism’, there is a need to apprehend those suspected of terrorism ‘prior to gathering sufficient evidence to secure a conviction’.

The DPR is driven by four inter-linked rationalities that fundamentally change the relationship between state and society by allowing new technologies to be deployed and justified as part of the fight against terror: the notion that any level of risk is unacceptable (i.e. zero risk), constant worst-case-scenario-thinking, the belief of serious and irreversible damage posed by terrorism, and the shifting of the burden of proof from state to society as a whole (Aradau and Van Munster, 2008). In this way, the ideal of total security has replaced the desire for peace, driving a politics that assumes the terrorist ‘other’ unquestionably responsible for irreparable damage.

From 2000-2006, five new terrorism acts were introduced which encompassed the expansion of powers that constituted ‘alternative non-prosecution actions to protect the public’ (PNLD 2009:85) such as 28 day pre-charge detention, stop and search powers, indefinite detention of ‘suspected international terrorists’, control orders and new offenses such as ‘glorification of terrorism’.  From 2007, counter-terrorism powers were effectively normalized. New offices, official national security strategies, and laws such as the Counter-Terror Act 2008 and the introduction of TPIMs ensured that exceptional measures were institutionalized. The expansion of counter-terror powers from temporary emergency legislation to permanent fixtures that institutionalize the decoupling of decision-making from the grounds of actuality in ‘daily security practice’ clearly illustrates how the DPR has set in motion the decoupling of action from actuality in the U.K.

Pre-emptive domestic security practices can be seen to be justified by an emotive narrative of national security that is extremely hard to counter-act. This is epitomized in the militarization of domestic policing in the U.K. which led to the shooting of Charles De Menezes as part of the new ‘shoot to kill’ policy operationalized after the 7/7 attacks in London. Similarly, 250 police officers stormed a house in Forest Gate in search of chemical weapons, shooting one man and detaining two for eight days – both men were later released without charge (Mythen and Walklate 2008:235).

Charles De Menzes: Mistaken for a suicide bomber and shot by police (Photo credit: BBC News)

These pre-emptive domestic practices are echoed in the violent complicity of the U.K. in the global intelligence network driving the pre-emptory abduction, rendition and torture of terror suspects; once one assumes a projective ‘what if?’ position, presumption of innocence metamorphoses into a presumption of guilt. The engendering of the decoupling of action from actuality is made undoubtedly clear by the recalibration of justice to allow for the pre-emptive measures to be issued purely on suspicion of future conduct; it is no longer necessary to carry out terrorist activity, suspicion of intent is enough. This dynamic thus echoes the DPR rationality of shifting the burden of proof: As Bonner (2007:34) outlines, post-9/11, suspects are effectively presumed guilty until proved otherwise. This is clear by Iain Blair’s assertions that whilst IRA terrorists were presumed innocent until proved guilty, the ‘unparalleled’ (in Bonner 2007:7) threat of today’s terrorist is seen as too dangerous to allow that privilege.

The DPR thus illuminates both the top-down discursive construction of the terrorist threat, and the efforts of the state to (re)establish a mandate for control; worst-case scenario-thinking drives more extreme measures that loop back and reinforce an expansive culture of fear, garnering support for pre-emptory practices that are based merely on suspicion of intent rather than any actual event. For example, the government reaction to the Forest Gate shooting reinforced the rationalities of the DPR: "You can only imagine if they fail to take action and something terrible happened what outcry would be then, so they are in an impossible situation" (BBC, 2006). The rationalities of zero-risk, the risk of catastrophic damage and worst-case-scenario-thinking drive a scare-mongering narrative that ultimately legitimizes the rationality of shifting the burden of proof from the state to the individual.

The difficulty to counter-act this emotional narrative of pre-emptive security policy is compounded by the fact that policy-making is seen by HROs as not malicious, but genuinely based on the desire to protect the public due to their duty to try to control the terrorist threat, or at least instill confidence in their authority by presenting the threat as ‘under control’. AIUK explained in an interview that the government ‘often had good grounds for having concerns’, and ‘we would be in a difficult position if we didn’t acknowledge that’, thus undermining attempts to state that a pre-emptive stance is detrimental to society. AIUK explained that the emotions surrounding the issue of protecting citizens allow for pre-emptive action on ‘extreme’ individuals. However, as Reprieve pointed out, just the mere suspicion of terrorist activity or association makes it very difficult to ‘advocate for them in the court of public opinion’ – ‘they’re scarecrows’. Representatives from Liberty and AIUK make clear that the government holds ‘all the cards’ in the form of national security intelligence access to state secrets. As AIUK illustrates, ‘the state can stand up and say we have seen how many bad guys there are…how many plots’. Both Liberty and AIUK point to this dynamic as a huge challenge to combat using human rights framework as the response is always boiled down to ‘we can do it now because the risk is so much greater than it has ever been’ (AIUK interview).

The main impact of the decoupling of political decision-making from actuality on the power of HROs is thus encapsulated in the future temporality of all decision-making. When there is no official offense or action that is being addressed through the application of a TPIM or by the rendition of a suspect – it is increasingly difficult to make people understand the difference between people who are merely suspected, and those who have actually committed a crime. CagePrisoners and AIUK argue that the very act of pre-emptory arrest, or the issue of TPIM leads the public to believe that they must be guilty of something – thus hindering HRO resistance to these measures. The onus of guilt placed on terror suspects by the decoupling of action from actuality is clearly seen in HRO advocacy for Shaker Aamer, the last British detainee in Guantanamo Bay. Aamer has never been charged with any crime, however the paralysis of this dynamic has rendered the writ of habeas corpus 'functionally useless’ due to the risk posed by his status as a terror suspect: what if?

This dynamic has taken a sinister turn domestically within the U.K. as CagePrisoners points out that doctors and university professors are now recommended to report those ‘vulnerable to extremism’ (Travis, 2011). This means that more and more public institutions where people interact are being drawn into the worst-case-scenario-thinking that rationalizes the DPR, feeding into a culture of fear that legitimates the creep towards the curtailment of rights to a fair trial, privacy, asylum and free movement because of fear of terrorism.

Aditi Gupta

Aditi Gupta graduated with an MSc in Global Politics (Civil Society) from the London School of Economics and Political Science in Autumn 2013.  She has previously worked at Soul Rebel Films and Reprieve and has co-authored reports based on depth interviews conducted for the Indian development NGO, CHIRAG. Aditi has volunteered for refugee and homelessorganizations in the UK and is developing a career in the human rights field. This is the second in her five-part series on Crimcast which began in early January, 2014.

You Believe You May Be Indicted Criminally... Would You (or Should You) Go Inquisitorial or Adversarial?

Nickie Phillips

King John signs the Magna Carta (Goodrich, 1844, History of York)

Guest post by Roger Szajngarten Based on my research, the answer is that if you feel very likely to be indicted and are guilty, but wealthy, you should go for the adversarial system. On the other hand, if you are innocent and poor, you may want to consider the inquisitorial system. The previous statement is based on my research findings regarding the grand jury in the US and the inquisitorial system in France and their respective histories, resulting in my recommendation that one of the inquisitorial system elements be incorporated within the American system.

The origin of the US grand jury can be traced back to the Vikings, the Saxons and the Franks tribes, but most directly to the relationship between King John and the English nobility, which in 1215 resulted in the enacting of the Magna Carta. Over time, the idea that a grand jury is a people’s panel necessary to indict took shape. The grand jury had been part of the American process to render justice prior to the establishment of the Constitution. The grand jury is specifically mentioned in the Bill of Rights, but was not incorporated in the executive, judicial or legislative branches. The original and current independence of the grand jury is in line with the goal to protect the innocent from the excess of the state. The grand jury has been and remains a powerful institution as it can issue subpoenas, question witnesses and prosecutors, but, most importantly, refuse to indict. However, the role of the grand jury has become perverted, and it is questionable as to whether it is still effective in protecting citizens. In effect, the prosecutor is physically present with mostly inexperienced grand jurors, preparing all the (often leading) questions to be asked from witnesses. Furthermore there are reported cases in which the prosecutor did not present all of the exculpatory evidence, used hearsay or excluded evidence not acceptable in a court in order to convince a grand jury. The famous and often quoted statement of Judge Sol Wachtler in 1985 summarizes the current situation as "Any prosecutor, who wanted to, could indict a ham sandwich.”

The U.S. criminal justice system relies on the adversarial trial with all its inherent checks and balances to address the key issue of guilt or innocence. However, since most defendants never reach the trial stage, because of the high rate of the use of plea bargaining, the values of our Constitution, which goes to such great length to protect the rights of individuals, have been weakened.

“La Loi” (The Law) by Jean-Jacques Feuchère, Place du Palais Bourbon, Paris (Daily Photo Stream, March 2008)

The French inquisitorial law system, which can be traced back to the Roman-Canonical approach, had been trending toward centralization and powerful judges. While originally there was some sort of jury system to investigate and report on fact, subsequent to the crowning of Napoleon as emperor, the inquisitorial system went further away from the jury system. The Napoleonic Code formally impaneled judges as an elite system constrained by extensive rules and regulations to ensure due process and that laws be promulgated solely by the legislative branch. Accordingly, most of the functions of the grand jury in France have traditionally been fulfilled by an investigating magistrate (juge d’instruction) as opposed to untrained citizens.

However, in contrast to the U.S., significant constitutional rights for the protection of individuals, which are often taken for granted and essential, do not exist in France. For example, there are weak exclusionary rules, police may easily detain a suspect, and only since recently an arrested suspect is immediately entitled to the presence of an attorney. Similar to the adversarial system, the initial investigation is led by the police and the prosecutor. If the prosecutor wants to pursue the case, the investigating magistrate takes over the investigation for serious and complex situations. The investigating magistrate is a professional and independent judge that acts as a neutral party between the state represented by the police and the prosecutor, and the suspect/accused and the defense counsel. The goal of the investigating magistrate is to seek the truth. The investigating magistrate, for instance, can call witnesses, retain independent experts at the cost of the state, organize confrontations, incarcerate or release suspects and he can then either dismiss a case or seek an indictment.

Reforms of the French inquisitorial system are actively being debated, including the role of the investigating magistrate. Some of the challenges originate from the European Court of Human Rights regarding individual rights protections. The reform, partially implemented, as to the role of the investigating magistrate stems from the tension between the strong Executive branch prevalent in France as well as at least one well published failure of the existing system.

I found out that both systems currently suffer from serious weaknesses and challenges in fulfilling their original mandates.  For the inquisitorial system, it is the unchecked power of an elite corps of magistrate and limited individual rights, and for the adversarial system the grand jury has become no more than a prosecutorial tool. As I have explained further in my research, the United States should build up on the investigating magistrate concept to rekindle its grand jury. States and the federal government should specifically introduce a professional and neutral judge dedicated to working with the people’s panel to fulfill its original mandate. The presence of a professional judge in grand juries would serve as a deterrent or a filter for any excesses of the state.

Roger

Roger A. Szajngarten is a current graduate student at John Jay College of Criminal Justice in the International Crime and Justice Program.  Roger is also a financial executive with almost 40 years of experience in more than 35 countries specializing in M&A, Treasury, Insurance and Entrepreneurship. Before that he studied Mathematics in Paris, France, and then earned his BSc in Aeronautical Engineering at the Israel Institute of Technology while also studying Sociology, and lastly an MBA at Columbia University. His specific areas of interest at John Jay are white collar crimes and markets regulation, as well as terrorism.

Prosecuting the Big Fish: A Brief Comparison of Organized Crime Laws in the United States and Italy

Nickie Phillips

mafia_loans

Guest post by Katie Kikendall

Despite a reputation as an antiquated concept, organized crime is still prevalent in society today. The FBI elaborates on its depth and reach, asserting that, “Organized crime comes at us from every corner of the globe.” In fact, it has diversified in its scope and activities in ways much more sophisticated than the roaring twenties era concept. In line with its growth have been policy and law enforcement efforts to stem and reduce this spread. Organized crime poses a threat to nation states in both social and economic aspects. Some of the activities it still oversees includes gambling, loan sharking, money laundering, waste hauling, and drug trafficking. Of particular relevance for legislation is an examination of Article 416-bisin Italy, and the United State’s favored legislation against organized crime, RICO (Racketeer Influenced and Corrupt Organizations) Act. Despite the success that both have had in their respective countries, RICO has been more effective in targeting organized crime than Article 416-bis.

The Italian Law Collection at the Library of Congress (http://blogs.loc.gov/law/2012/03/a-visit-to-the-italian-law-collection-pic-of-the-week/)

In defining Organized Crime, Turone (2006) points out that, “Italian case law requires for the criminal association to be more durable and complex than that implied by the UN convention” (p.48) Contrast this definition to that of the United States, where there is not currently one statutory definition of organized crime. In fact, RICO legislation tends to describe, and consequently criminalize, the activities of organized crime members more than the association with the group. In terms of definition, Italy’s more strict requirements differentiate it from international standards and may make it more difficult to prosecute transnational organizations.

In addition to the differences in definitions, the burden of proof required for individuals to be convicted under Article 416-bis and RICO are different. Under 416, witnesses are unnecessary and “prosecution is based upon relating the crimes committed to the documentation of the economic and financial operations carried out by Mafia members” (Scotti, 2002, p.160) This accounts for a lighter burden of proof than RICO. In addition to requiring the establishment of an enterprise, RICO cases must also establish a pattern of racketeering activity, where, “at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years” [RICO, 18 U.S.C. § 1961(5) (1976)], as well as an additional act beyond this pattern established, for example, investment in said enterprise. This higher burden of proof has allowed prosecutors in the United States to indict those with a higher stake in organized crime, for example bosses and capos, rather than risk just punishing replaceable soldiers. In terms of punishment Article 416-bis provide for mandatory sentencing, but at less length of imprisonment than those mandated by the United States. This length of mandatory sentencing in the United States has meant it keeps higher ranking individuals out of the enterprise for longer, once again, attacking the scaffolding of these enterprises.

Both Article 416-bis and RICO have enjoyed successes in their respective countries, however, RICO has been more effective at reducing organized crime due to its ability to target the higher ranking members of the organization. It is important for countries to have effective legislation and policy in place so that they may effectively address organized crime, not only in the realm of the traditional mafia, but also, looking forward, in terms of white collar crime, Asian-based organized crime, as well as terrorist  networks.

Katie

Katie Kikendall is a current graduate student at John Jay College of Criminal Justice in the International Crime and Justice Program. She earned her B.A. in Criminology, Law and Society at the University of California, Irvine. Her specific areas of interest include organized crime and terrorism.