Hysteresis, Risk and Redemption: Social Enquiry and the New Penology

1
Hysteresis, Risk and Redemption Social Enquiry
and the New Penology

• Fergus McNeill
• University of Glasgow
• F.McNeill_at_sccjr.ac.uk

2
Social enquiry in Scotland past and present?

• Separating the incorrigible from the
  reclaimable? Rationales for leniency and for
  punishment (by de-selection)
• Supervision (1905-1931)
• Treatment (1931-1971)
• Welfare (1971-1991)
• Responsibility (1991-1997)
• Risk (1998)

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Risk in two sites

• How are discourses and practices of risk
  assessment constructed in the production of court
  reports in two contrasting Scottish sites?
• Westwood a CJSW team in a Scottish city,
  relatively remote from the large court they serve
• Southpark the CJSW team in a provincial town,
  relatively close to its court through links
  facilitated by two court social workers in the
  team
• Data from case records, observations of
  interviews with offenders, from the reports, from
  shadow report writing and from interviews with
  workers
• A question best answered in case studies but no
  time for that here!

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Summary of Risk in Westwood and Southpark

• Westwood
• Risk is mentioned in only 6 of 16 reports
• No mention of tools professional assessment
• Greater focus in reports on responsibility
  (character, attitudes, motivation, compliance,
  etc.) than risk
• In the 6 cases, risk is deployed in contrasting
  ways
• Risk of reoffending (rarely harm), high risk as
  a contra-indication for community penalties and
  as an (implicit) rationale for condemnation,
  high risk as an indication for community
  penalties and a rationale for leniency, low
  risk as a rationale for leniency

• Southpark
• 18 of 24 reports discuss risk
• Risk omitted in cases that appeared to be less
  serious (implicit assessment)
• 14 refer to LSIR scores, 3 to professionals own
  assessments, 1 disputes high LSIR score
• No obvious relationship between risk assessment
  and sentencing proposal
• Risk assessment peripheral in most cases
• Principal focus is on responsibility, character,
  attitudes, motivation, compliance, etc.
• Reputational risk and credibility
• It is not offender risk per se that determines
  the proposal, it is the workers willingness to
  risk making that proposal and supervising that
  offender

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SWIA on risk assessment in Westwood and Southpark

• Southpark
• Much greater use of LSI-R but risk assessment
  still deemed to be poor in about 1 in 5 cases and
  adequate in 1 in 2 cases.
• Different views about the value of the LSI-R,
  confusion about its purpose. Some found it
  helpful, others described it as a paper
  exercise. Some unaware of a policy LSI-R scores
  lower than ten indicate cases not normally
  suitable for probation. A few said that they
  tended to override a low LSI-R score where they
  thought there was an offending-related need which
  the offender was not prepared to address
  voluntarily.

• Westwood
• LSI-R used in just over half of cases reviewed by
  inspectors quality of risk assessment deemed
  poor in almost a third of cases and (only)
  adequate in a further third.
• Practitioners ambivalent about carrying out
  structured risk assessments using the LSI-R
  (seen as) an administrative chore not a genuine
  aid to practice it only confirms what you
  know not clear to staff how it should apply to
  practice
• Managers commented that risk assessment practice
  was in a state of flux.

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Narrative production and risk

• Typification and simplification
• the use of existing narratives
• Narrative co-production (but unequal)
• The search for coherence and persuasiveness
• Corroboration, consonance and dissonance
• Rebuttable narratives
• Reflexivity, trust and emotion
• Risk in defence of welfare (Hannah-Moffat, 2004
  OMalley, 2004) and in punishment by de-selection
  
• Technical questions about risk or moral
  assessments of responsibility?
• Responsibility for the offence and potential for
  responsibilization (partly) to reduce risk
• The transformative risk subject (Hannah-Moffat
  2005)
• Perception of deceit and/or non compliance
  constructs subjects as unsuitable for (and
  undeserving of) transformation

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Why Bourdieu?

• The Governmentality Gap
• Governmental rationalities and technologies and
  only contingently related to the construction of
  penality in practice
• Penal-professional cultures and actors can be
  co-opted to and/o resistant to these
  rationalities and technologies
• Bourdieus social theory can help to explain how
  social practices are constructed in and through
  relations within particular areas of social life.
• Criminal fields
• Legal/juridical fields
• Penal-professional fields

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The holy trinity
Field
Practice
Capital
Habitus
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Hysteresis and habitus

• Habitus is not necessarily adapted to its
  situation nor necessarily coherent it can be
  observed that to contradictory positions there
  often correspond destabilized habitus, torn by
  contradiction and internal division, generating
  suffering. Moreover, even if dispositions may
  waste away or weaken through lack of use, or as
  a result of heightened consciousness associated
  with an effort of transformation, there is an
  inertia (or hysteresis) of habitus which have a
  spontaneous tendency (based on biology) to
  perpetuate structures corresponding to their
  conditions of production. As a result, it can
  happen that, in what might be called the Don
  Quixote effect, dispositions are out of line with
  the field and with the collective expectations
  which are constitutive of its normality
  (Bourdieu, 2000 161).

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Consciousness and Habitus

• it is likely that those who are in their
  right place in the social world can abandon or
  entrust themselves more, and more completely, to
  their dispositions (this is the ease of the
  well-born) than those who occupy awkward
  positions, such as the parvenus and the
  déclassés, and the latter are more likely to
  bring to consciousness that which, for others, is
  taken for granted, because they are forced to
  keep watch on themselves and consciously correct
  the first movements of a habitus that generates
  inappropriate or misplaced behaviours (Bourdieu,
  2000 163).

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Discussion I

• Policy discourses and formal regulatory regimes
  have been transformed around risk to some extent
  social workers are beginning to respond to this
  change
• Social workers seem to sense that appeals to
  welfare are outmoded out of kilter with the
  policy shift
• Some of them are trying to deploy risk as a
  source of capital in a reconfigured CJS a form
  of adaptation or misadaptation
• But sentencers (as well-born insiders rich in
  cultural and symbolic capital) have needed to
  adapt less, so social workers (as parvenus or
  declasses) appeals to risk are often
  ineffective or misread or misdirected
  sentencers dont trust risk assessment (neither
  by tools nor by professionals)

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Discussion II

• In this field, different habituses are
  mismatching and misfiring - for different penal
  actors with different histories in the field and
  different sources of capital, transformations are
  differently paced, constructed and experienced
  differently accommodated, resisted and subverted.
• Different actors are more or less conscious and
  reflective in relation to their different forms
  and degrees of unease about wider penal-political
  changes and new rationalities and technologies
• Studying accounts and discourses (as opposed to
  cultures and practices) - which tend to mimic
  governmental rationalities - can lead to
  under-stating and under-theorising heterogeneity
  within penal reconfiguration and the
  heterogeneous processes of cooptation,
  adaptation, resistance and subversion