Critical Issues Criminal Justice

‘The notion of “actuarial justice” is being applied within the field of youth offending. Discuss the concept of actuarial justice in its broader context, and draw on relevant literature and research to critically discuss this approach in its use with young offenders.’

A number of commentators have suggested that youth justice has become increasingly dominated by neo-liberalist theories associated with managerialism and actuarial risk management which have been criticised for being both repressive and incapacitating (Goldson, 2005, Muncie et al., 2002). In this essay, the policy and practice of actuarial justice in youth offending will be considered critically and in the context of current preoccupations with ‘risk’ and its management. Moreover, the positive outputs of the current approach to youth offending will be discussed and are identified alongside the methodological and theoretical limitations of the strategy. This essay concludes, however, that the problems associated with a focus upon actuarial justice in the current youth justice model are in fact broader and more pervasive than those associated with only those identified contextual/methodological constraints.

Reflecting a paradigm shift in public/political thinking about youth justice in the 1990s, the findings of the Audit Commissions’ report Misspent Youth were profoundly critical of both the efficiency and the effectiveness of the youth justice system. Underpinned by, in particular, David Farrington’s longitudinal research (1996), the report advocated the specific targeting of ‘risk factors’ associated with offending behaviour. Identified risk factors spanned a range of socio-economic circumstances from unemployment and lack of training/educational opportunities to poor parenting and peer group pressure.

Subsequently, the Crime and Disorder Act 1998 embodied a number of the Audit Commission’s recommendations in respect of youth offending, which Muncie et al. (2002) have described as encapsulating a new managerialst approach to youth justice – replacing previous welfare and social justice preoccupations. This new form of actuarial assessment of risk is fundamentally centred upon a pragmatic approach to crime control/prevention that utilises a ‘risk prevention paradigm’ to inform evidence based interventions to prevent and to control the risk of offending. Rather than focussing upon rehabilitation and/or treatment of offenders, the ‘risk factor prevention paradigm’ identifies the positivist quantification of risk as paramount in crime prevention and youth justice. Consequently, ‘risk factors’ and their identification now underpin a great deal of the Youth Justice System’s early intervention strategies not to mention government funded research in this area (Armstrong et al., 2005). These changes can be identified as located within the domain of risk society theory and, more specifically, within the discourse of actuarial justice. For the purposes of this present discussion, it is propitious now to begin to consider these terms in some detail.

The contemporary approach to youth offending embodied within government policy reflects an overarching social governance approach to youth justice that is concerned with ‘risk’ management. Indeed, in a broader sense the identification, classification and regulation of risk is very much a modern pre-occupation which permeates many different facets of our daily lives (Donoghue, 2008). From terrorism to natural disasters to allergies to the stock market, risk and how it might best be managed is a theme which is pervasive in modern life. Indeed, Ulrich Beck, who is the author of the term ‘risk society’ (1986; 1992; 1994), determines that modern society, by virtue of its inherent uncertainties and its resulting insecurities, has become increasingly concerned with risk and its management. He observes:

Risk may be defined as a systematic way of dealing with hazards and insecurities induced and introduced by modernization itself. Risks, as opposed to older dangers, are consequences which relate to the threatening force of modernization and to its globalization of doubt (Beck, 1992 p21 original emphasis).

In this context, Lupton (1999) has developed an account of risk society that is understood through the ‘expert’ evaluation of risk. Risk society is thereby understood in terms of expert-developed scientific criteria that produce cogent, unbiased projections of risks in society. As Giddens (1991 p111) observes: ‘A significant part of expert thinking and public discourse today is made up of risk profiling – analysing what, in the current state of knowledge and in current conditions, is the distribution of risks in given milieux of action’. In this sense, risk is about what Giddens terms the ‘colonisation of the future’ – that is, being able to account for and understand future happenings. In this context, risk is understood through the positivist route of scientific empiricism.

Furthermore, in contemporary society, regulation of risk is not simply a State enterprise but is increasingly becoming identified as an action intrinsically – and inextricably – linked to individual autonomy. As Webb observes:

‘…all individual conduct is increasingly seen as entailing choice, life planning and purposeful paths…In its attempt to rationalise excess and deficiency in individual behaviour, the neo-liberal state comes into conflict with subjective attempts to pursue chains of democratic freedom that are potentially excessive or deficient, such as alcohol or drug misuse…Active citizenship is encouraged with individuals being increasingly held responsible for managing and calculating their own risk’. (2006 pp38-39)

Consequently, the requirement for individual autonomy to enable behavioural self-regulation means that, derivatively, those individuals who are incapable of regulating their behaviour will be identified as requiring intervention. These identified individuals have been described by Dean (1999 p167) as ‘“targeted populations” who require assistance and protection’. Thus risk governance is also about the regulation of those groups and individuals who do not adhere to normalised standards of behaviour in modern society (Webb, 2006). For instance, the Home Office (2007) has identified four principal types of circumstance which are quantified as presenting individuals ‘at risk’ of perpetrating anti-social behaviour:

Family environment Risk factors include: poor parental discipline and supervision; family conflict (between parents or between parents and children); family history of problem behaviour; parental involvement/attitudes condoning problem behaviour

Schooling & educational attainment Risk factors include: aggressive behaviour (e.g. bullying); lack of commitment to school; school disorganisation; school exclusion and truancy patterns; low achievement at school Community life / accommodation / employment Risk factors include: community disorganisation and neglect; the availability of drugs and alcohol; lack of neighbourhood attachment; growing up in a deprived area within low income families, high rates of unemployment and a high turnover of population; areas where there are high levels of vandalism

Personal and individual Risk factors include: alienation and lack of social commitment; early involvement in problem behaviour; attitudes that condone problem behaviour; for young people, a high proportion of unsupervised time spent with peers and friends or peers involved in problem behaviour; mental illness; early involvement in the use of illegal drugs and crime (Home Office, 2007).

Similarly, current policy on youth offending perceptibly fits the dimensions of a modern institutionalised risk system that fundamentally subsumes the reflexive monitoring and scrutiny of risk. That is to say, ‘risk’ is profiled via ‘expert’ systems (professional knowledge(s)) through an analysis of behaviours which may be categorised as ‘risk-bearing’. These identified ‘risk-bearing’ behaviours are then manipulated/managed (through selected institutional practices) to affect change in the form of increased security. Hence, youth justice policy is quintessentially ‘risk’ assessment. And these assessments can be contextualised as attempts to render future happenings as controllable.

Moreover, the concept of risk is intrinsically bound up with the notion of actuarial justice. The term ‘actuarial justice’ was first introduced by Feeley and Simon (1992, 1994) who determined that actuarial justice embodied an intelligible, systematic discourse concerning the prediction of crime through risk assessment involving the cogent, robust, often mathematical calculation of behavioural probabilities which are then used to inform criminal justice policy and judicial decision-making. Feeley and Simon also contend that the overarching preoccupation upon risk and its management within criminal justice policy is indicative of a substantive ideological paradigm shift, whereby traditional concerns for the individual offender in respect of culpability, intervention and rehabilitation, have been superseded by a ‘new penology’ which is:

‘…concerned with techniques for identifying, classifying and managing groups assorted by levels of dangerousness. It takes crime for granted. It accepts deviance as normal. It is sceptical that liberal interventionist crime control strategies do or can make a difference. Thus its aim is not to intervene in individuals’ lives for the purpose of ascertaining responsibility, making the guilty “pay for their crime” or changing them. Rather it seeks to regulate groups as part of a strategy of managing danger’ (Feeley and Simon, 1994 p173).

In this respect, wider issues relating to social stratification and, in particular, the status and value of rehabilitation, appear minimised. Offenders are thus identified as ‘risks who must be managed. Instead of emphasizing rehabilitative methods that meet the offenders’ needs, the system emphasises effective controls that minimise costs and maximise security’ (Garland, 2001 p175).

More broadly, the contemporary prevalence of ‘risk management’ in social policy and criminology through the ‘expert’ identification of ‘risk categories’ (Kemshall and MacGuire, 2001) has been criticised for putting ‘the lessening of risk, not the meeting of need’ in a fundamental position of primacy (Culpitt, 1999 p35), whereby technical and professional knowledge(s) are paramount in defining, identifying, quantifying and managing specified ‘risk categories’ (Scourfield and Welsh, 2003 p404). Hence, the fundamental position occupied by ‘expert’ systems means that professional and technical classifications of ‘risk’ are paramount. In effect, this means that professional practice is developed and evolved through de facto categories of ‘risk’ created by ‘expert’ systems.

A number of commentators have observed the way in which analyses of actuarial justice and the risk society thesis have converged resulting in an approach to youth offending which is statistically based and therefore limited in scope and subject to political manipulation. In particular, critics have argued that the existing focus of the actuarial approach to youth offending has been reductive in its understanding(s) of broader socio-economic/structural factors that impact upon risk assessment (Goldson, 2005). This, it has been suggested, has resulted in a continued (limited) focus upon individual, biological, peer and situational factors that are understood essentially in a paradigm that is decontextualised, without proper regard for the de facto structural complexities of individual circumstances. Indeed, as Annison observes:

‘While risk assessment tools have provided a structured approach to risk assessment of young people who offend, the wider social, cultural and political context also needs to be considered’ (2005 p119). In this respect, research on risk factors in youth offending has necessarily become overtly prescriptive in terms of its context of analysis and narrow in focus (Case, 2007).

At present, one of the most important tools in the Youth Justice Service’s risk assessment of youth offending is the assessment instrument ASSET. This form of assessment collects demographic data but also collates a plethora of other information on young offenders, including education/training employment status, details of inter-personal relationships, physical and mental health, psycho-social factors, cognitive behavioural patterns, neighbourhood/community environment and individual motivation(s). Given its 69 per cent accuracy in predicting reconviction, it is apparent, at least in statistical terms, that ASSET is a very efficient tool for risk assessment. Indeed, a number of commentators, while acknowledging that any system of assessment is imperfect, have observed that ASSET has nonetheless been able to produce statistically accurate information on which to base substantive risk interventions (Baker et al., 2004).

Consequently, Whyte (2004 p11) has argued that ASSET is thus an ‘actuarially impressive’ instrument capable of improving transparency in professional decision-making resulting in ‘a welcome progression from invisible, idiosyncratic practitioner judgement which is often difficult to challenge’. In this sense, it can perhaps be argued that actuarial assessments of risk can also be viewed as a tool for governments to hold practitioners/professionals responsible for policy shortcomings but also to control and to monitor them through audit and procedures. These processes of identification, quantification, planning and protection have engendered what Power (1997) terms an ‘“audit society” in which performance, accountability and transparency become key elements of regulation.

However, it is also important to note that, despite the advantages of ASSET over previously applied clinical assessment (Baker et al., 2004), actuarial tools of risk assessment are not as effective at being able to predict re-offending (as opposed to re-conviction) and, moreover, the seriousness of the offence committed (Case, 2007). This, in turn, has implications for the de facto way(s) in which the risk factor prevention paradigm is capable of (legitimately) informing policy and practice interventions. Nonetheless, as Annison (2005) contends, actuarial risk assessment is grounded in scientific empiricism which means that it will continue to be (re-)evaluated and (re-)assessed as an effective tool for risk quantification.

Yet, the precise nature and definition of a ‘risk factor’ is itself ambiguous which is necessarily problematic in terms of both theory and practice. Derivatively, this has resulted in difficulties in being able to statistically define the substantive inter-relationship between risk factors – and offending (Prior and Paris, 2005). Consequently, understandings and conceptualisations of a ‘risk factor’ are not applied unilaterally in criminological research (Case, 2007). Farrington (2002) and Case (2007) have subsequently argued for a more consistent approach to the terminology used in risk assessment. However, the basis for much of the critical commentary on actuarial risk assessment in youth offending is not premised on the notion of consistency per se – rather, critical criminological accounts are for the most part concerned with the methodological limitations of risk quantification (and its application) within youth justice which will now be considered in detail.

Having so far observed the difficulties arising out of the ambiguous notion of a ‘risk factor’, and the way in which the term is operationalised, one must now consider the specific charge that the methodology of actuarial risk assessment is intrinsically flawed. Critiques have converged upon the identification of actuarial risk assessment as underpinned by positivist methodologies which produce ‘correlations between risk factors and offending [that] tell us little about why people behave as they do’ (Armstrong, 2006 p101). The reliance upon a positivist methodology necessarily infers, it is argued, that those factors not statistically linked to offending are rejected as irrelevant non-risk factors. This in turn produces an incomplete methodology which is unable to accurately enable a complete/true understanding of how and why risk factors do or do not work – and in which circumstances (Case, 2007). The focus of much existing (government) research on risk and youth offending is upon statistical modelling and therefore a necessarily quantitative methodological approach is adopted. In this vein, Case (2007 p98) argues that this:

‘…limits politicians, policy makers and practitioners to extrapolating or hypothesising the reasons for the associations between certain factors of offending, rather than being informed by qualitative investigation of how risk/protective factors work to increase the likelihood of offending, how they can be manipulated and improved, and why behavioural change may occur as a result.’

Therefore, the methodological imbalance that is evident in criminological research on risk and youth offending has lead to calls for a more nuanced approach to the study of risk factors which has a greater focus upon qualitative outputs (Tilley, 2001). In particular, it has been argued that qualitative research must specifically be conducted with youth justice practitioners and young people in order to provide a richer and deeper analysis of youth offending and the factors that are instrumental in the prevention of offending (Case, 2007). Such investigation would, it is proposed, serve to create new knowledge(s) about meanings and motivations impacting upon youth offending which are currently not produced by positivist analyses (Case, 2007).

Indeed, criminological research appears to be moving in this direction, or at least towards a more inclusive methodological approach to the study of risk factors. A number of recent studies have invoked both quantitative (positivist) and qualitative (phenomenological) data production approaches, and are thus ‘mixed-method’ in their composition (see, for example, Budd et al., 2005; YJB, 2005). According to Cohen and Manion (1980 p233), a ‘mixed method’ research design enables the researcher to:

‘map out or explain more fully the richness and complexity of human behaviour by studying it from more than one standpoint, and, in so doing, by making more use of both qualitative and quantitative data.’

Therefore, it is suggested that the revision and re-assessment of methodological approaches to the study of risk is extremely important in being able to address the problems/criticisms associated with the actuarial justice model in youth offending. As Case (2007 p101) rightly surmises, a greater focus upon qualitative/mixed-method research methodologies:

‘…inverts the risk-focus of the risk factor prevention paradigm and moves it forward from a narrow, risk-focussed, socially-exclusive model towards an holistic approach with the potential to inform socially-inclusive, empowering interventions that transcend the Youth Justice System.’

In this context, however, it is crucial to observe that Crawford and Lewis (2007) have identified the substantive incongruity between theories of actuarial justice and, de facto assessment practices. Indeed, the evolution of risk assessment/interventions has seen the conflation of aspects of positivist aspects of risk management with the identification/research of those social factors traditionally associated with social welfare/justice paradigms (O’Malley, 2001). Amongst others, Hannah-Moffat (2005 p29) has described ‘the discrepancies between theories of risk and penality and emergent strategies of risk/need identification and management’. Thus, it is apparent that actuarial risk assessment is not necessarily as monolithic in its application (and in terms of its theoretical bases) as critics might contend: rehabilitation now forms an integral part of actuarial risk interventions as opposed to, unilaterally, surveillance and/or coercion. As Crawford and Lewis (2007 p15) succinctly conclude, ‘…hybrid neo-liberal/welfare-focused strategies of governance are emerging as the managerialist drive for efficiency, effectiveness and economy combines with an appreciation of “dynamic risk factors” to produce risk management strategies that encompass efforts to address criminogenic need’. Thus criticisms about the methodological limitations of risk assessment need to be situated in the context of wider understandings of and knowledge about the practice of risk interventions.

While a greater focus upon redressing the methodological limitations of the current approach to youth offending is undoubtedly necessary, it is submitted here that the problems associated with a focus upon actuarial justice in the current youth justice model are broader and more pervasive than those associated with only those identified contextual/methodological constraints. Indeed, as Crawford and Lewis (2007 p18) astutely observe, the deeply embedded ‘political ambiguity and cultural volatility surrounding youth justice policy and practice’ has produced a theory and practice of youth offending that is often applied unevenly, and, moreover, contradictory to its intended aims. The current focus upon actuarial justice within the field of youth offending would certainly be enhanced by an improved methodological approach, however, it is argued that the ideological framework (and its inherent ambiguities) underpinning current policy and practice on youth offending must also be re-evaluated so that criminal justice can develop a more strategic, less theoretically ambiguous approach to the treatment of young offenders which has an overarching central concern with understanding the subtleties of the daily lived experiences of young people in contemporary society.

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