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    Zedner- Historical antecedents of contemporary crime control Zedner- Historical antecedents of contemporary crime control Document Transcript

    • doi:10.1093/bjc/azi043 BRIT. J. CRIMINOL. (2006) 46, 78–96 Advance Access publication 3 May 2005 POLICING BEFORE AND AFTER THE POLICE The Historical Antecedents of Contemporary Crime Control L U C IA Z E D N E R *The extent and import of changes in contemporary crime control are hotly contested. By settingthese changes in historical perspective, this article challenges claims that we are entering a new erain policing. Examining the eighteenth-century antecedents of present developments reveals theexplanatory value of historical perspective and the relevance of Enlightenment political theory forthe present governance of policing. Teasing out enduring motifs in crime control suggests that thesymbolic monopoly on policing asserted by the modern criminal justice state may just be a historicalblip in a longer-term pattern of multiple policing providers and markets in security. Loss of thismonopoly only intensifies state responsibility to uphold policing as a public good. For well over 100 years, the state has asserted its primary responsibility for policing andcrime control. The institution of the police is synonymous with the modern state andpublic policing is one of the defining characteristics of state power. Whether the modernstate’s claim to a monopoly of violence was, in practice, realized through the engine ofthe police or was rather a highly effective, though illusory, ideological construction isopen to question. The answer to that question lies at the heart of an important crimino-logical debate about the extent and nature of contemporary changes in the delivery,practice and orientation of policing.1 Some interpret these changes as constituting aradical break with the past. Characteristic is the claim by Bayley and Shearing that ‘[M]odern democratic countries . . . have reached a watershed in the evolution of their sys-tems of crime control and law enforcement. Future generations will look back on our eraas a time when one system of policing ended and another took its place’ (Bayley andShearing 1996: 585). Others, like Jones and Newburn, doubt the universal applicability ofthis transformation. Although they acknowledge that significant shifts have occurred inpublic policing and that there has been a substantial expansion in private sector securityservices, they argue that criminologists have tended ‘to overstate the novelty and the“epochal” nature of current trends’ and to overlook continuities with the recent past inthe race to identify new ‘master patterns’ ( Jones and Newburn 2002: 130). This paper enters the fray by suggesting an alternate reading that takes issue with thepositions represented respectively by Bayley and Shearing2 and by Jones and Newburn. * Corpus Christi College, University of Oxford, Oxford OX1 4JF, UK; email: lucia.zedner@law.ox.ac.uk. I am grateful to NicolaLacey, Ian Loader, Tim Newburn, Pat O’Malley, Clifford Shearing, Alison Wakefield, the two anonymous BJC reviewers and partici-pants at the British Society of Criminology meeting at the London School of Economics for their most helpful comments and sugges-tions. Thanks are also due to the British Academy, whose award of a two-year Research Readership made possible the writing of thisarticle. 1 The literature is too extensive to cite here; important examples include: Ericson and Haggerty 1997; Garland 2001; Johnston1999; Braithwaite 2000a; Shearing 2001. 2 In another article, Shearing does identify what he terms ‘an emerging “neo-feudalism” ’. However, he uses this term not to drawparallels with an earlier era but ‘in a limited sense to draw attention to the emergence of domains of mass private property that are“gated” in various ways’ (Shearing 2001: 211). 78© The Author 2005. Published by Oxford University Press on behalf of the Centre for Crime and Justice Studies (ISTD). All rights reserved. For permissions, please e-mail: journals.permissions@oupjournals.org
    • POLICING BEFORE AND AFTER THE POLICEIt identifies significant discontinuities between the modern criminal justice stateand that which is now emerging. But rather than present the emergent trends asbetokening the arrival of a new system of policing, it suggests that they are betterseen as displaying significant links with an earlier era before ‘the police’ in the sensethat we have come to use the term. It explores the possibility that current develop-ments recall the historical process whereby state responsibility for crime controlgrew out of individual responsibility, communal self-help and private provision. Inso doing, it contends that contemporary trends in policing signify less a departurefrom historical practice than those who proclaim the arrival of a new epochacknowledge. Although most commentators overlook these historic parallels, there a few notableexceptions. Spitzer and Scull observed of the early re-emergence of private policing‘what is perhaps most intriguing about this movement toward privatization is the way itparallels the rise of policing for profit in earlier historical periods’ (Spitzer and Scull1977: 19). And, of more recent shifts, Stenson has suggested that ‘It is not altogetherfanciful to draw some parallels with police science theorists of the seventeenth andeighteenth centuries’ (Stenson 2001: 107). In what follows, I build on this suggestion tosketch out some significant similarities between the eighteenth century and the presentday in the concepts, structures and practices of policing. My purpose for so doing is as anecessary historical precursor to the larger question of how best we regulate policing inan era ‘after the police’. Identifying DiscontinuitiesIn so far as tracing master patterns and identifying paradigm shifts in policing is akin towriting the academic equivalent of tabloid headlines, the value of this kind of criminologyis questionable. Reflecting on parallel academic controversies about whether contem-porary penal policy can best be explained by reference to the onset of late modernity,the death throes of modernity, or the advent of post-modernity (Lucken 1998; Pratt2000; Miller 2001; Garland 2001), Sparks astutely observes such debate ‘is messy andpotentially disorientates us further’ (Sparks 1997). And yet, as an erstwhile historian,there does seem to be potential explanatory value in trying to distinguish between con-tinuities and discontinuities. Periodization is a tool by which historians divide up the past. By detailed historicalcomparison, they seek to identify points of rupture at which discontinuities outweighcontinuities in sufficient measure to make it possible to say that one period has endedand another begun. Their purpose is not principally to make grand claims about ‘theend of an era’ or ‘the opening of a new epoch’ (though it is often upon such claims thatreputations are made and lost). Rather, the historian’s interest is analytical. In the activ-ity of distinguishing required by periodization lies the possibility of discerning the defin-ing characteristics and qualities that permit generalization and, thereby, theexplanation of historical change. As Carr observed: ‘The division of history into periodsis not a fact, but a necessary hypothesis or tool of thought, valid in so far as it is illumi-nating, and dependent for its validity on interpretation’ (Carr 1977: 60). Periodizationallows us to explore whether and to what degree the criminal justice state standsunscathed by changes now occurring by enabling us to interpret the nature and importof those changes. 79
    • ZEDNER The Bases of Normative EnquiryAn important motivation for this line of enquiry is that contemporary changes in crimecontrol raise important ethical and political issues. Although considerable sociologicalattention has been paid to changes in policing, less has been directed to the normativequestions that arise directly from them (though see Loader 1997; Loader and Walker2001; von Hirsch et al. 2000; Zedner 2003b). These questions include: Who ought tohave responsibility for policing? What ethical issues arise where policing is pursued byagents outside the criminal justice state? What are the political ramifications of changesin the orientation and goals of the state police? What is the nature of the goods pur-sued respectively by public and private police? Is policing an irredeemably public goodand, if so, how best can it be protected? As delivery of policing shifts increasingly intoprivate hands, do we need a new language to talk about what is on offer, to whom, andat what cost? And finally, it is plausible that private providers can fulfil the larger pur-poses of policing? Answers to these questions depend not least upon our conception ofthe good society and the proper role of policing within it. In tackling these questions, we need not only some measure of the changes takingplace, their scope and their ramifications; we also need to identify fitting intellectualresources with which to furnish apposite answers. If current changes connote thearrival of a new epoch, they may require new intellectual tools. If, on the other hand,they are, in significant respects, continuous with an earlier period, might the theoreti-cal writings of that era furnish insights relevant to the present day? If it is the case thatthere are significant parallels between eighteenth- and twenty-first-century modes ofcrime control, perhaps Hudson is right to argue that we need to balance the ‘analysis ofthe strengthening and deepening penetration of governance in the name of providingsecurity, with the Enlightenment elaboration of theories of justice and boundaries oflegitimate authority which . . . set limits to governance’ (Hudson 2001: 146). Enlighten-ment political philosophy begins to look like a potentially fertile intellectual resource,and not just because this was a period of sophisticated political thought about thenature and role of the state. It also provides insights from a time when responsibility forsecurity was distributed among state, local, communal and private bodies in a mannerthat, though it certainly does not exactly mirror today, offers suggestive analogies. The relationship between normative theory and explanatory enquiry is an enor-mously complex one that we cannot explore adequately here (see, e.g. Wagner 1994;Braithwaite 2000b; Bauman 1992: Chapters 1 and 5). Although it would not do to postponethe normative project until the explanatory issues are settled, without some contextual-ized analysis, normative theorizing risks creating utopias that are impossible to realizein practice. As Lacey observes: ‘In normative philosophy, the temptations of elaborateand elegant theory-construction, of the development of beautiful utopian visions, pro-vide a substantial incentive to ignore inconvenient obstacles thrown up by the recalci-trant empirical world’ (Lacey forthcoming). Given that it is unrealistic to expectphilosophers to tool up as sociologists and vice versa, one possible shortcut is to revisitphilosophical literature from a period with at least some empirical resemblances topresent-day developments in the hope that Enlightenment thought might throw lightupon them. There has, of course, been considerable interest in eighteenth-century writings onthe birth of the modern police (Emsley 1983; 1996; Rawlings 2003). Reiner provides an 80
    • POLICING BEFORE AND AFTER THE POLICEexcellent overview of the main schools or ‘orthodox’ and ‘revisionist’ histories of policeformation, before going on to suggest a more nuanced, synthetic account of his own(Reiner 2000: Chapter 1). There has also been interest in the formulations of variousEnlightenment thinkers for a new science of the police (Kneymeyer 1980) and, morerecently, on the preventive turn of some Enlightenment writings, notably Colquhounon policing as prevention (McMullen 1998). But most enquiries have concerned themanner in which this literature prefigured the development of the modern professionalpolice rather than Enlightenment thought on policing per se. If I do not share entirelyDahrendorf’s self-identification (in the introduction to his 1985 Hamlyn lectures on‘Law and Order’) as ‘an unreconstructed eighteenth century liberal’ (Dahrendorf1985: xi), I also see more mileage in classical accounts of liberalism than many contem-porary commentators are minded to admit. Notes on NomenclatureFirst, in the interests of clarity, a few notes on nomenclature. What does it mean to talkof ‘Policing before and after the Police’? By ‘the police’, I refer to constables in theemploy of the state, whose task it is to deliver up criminals to the criminal justice system.This crude oversimplification does damage to the variety of the police and the consid-erable complexity of their role but it does capture the indissoluble relationshipbetween the police and the modern state. The state’s claim to sovereignty over crimecontrol has already been exposed as more myth than unproblematic reality (Garland1996). And, yet, the publicly employed officers of the state police have been generallyregarded as synonymous with the modern criminal justice state. It now appears increas-ingly possible that this model of the police may come to be seen as a historical blip ina more enduring schema of policing as an array of activities undertaken by multipleprivate and public agencies, and individual and communal endeavours. In the longerterm, that archetypal modern state venture—the criminal justice system—may itself beregarded as a historical anomaly. To this extent, to speak of ‘the police’ looks increas-ingly like a reference to a distinct historical period, with particular characteristics, prac-tices, orientations, values and goals. And even this may be less a reference to anyempirical reality than to an ideological construct (which itself belied the variegatedsources of social control persisting even at the height of the criminal justice state). By ‘before and after the police’, I clearly do not mean that the state police are nomore. At a time when police numbers have reached an all-time high and are increasingat the rate of around 6,000 every year,3 it would take an act of wilful blindness to denytheir existence and continuing importance. That said, changes on the margins and out-side the state make it increasingly problematic to think of the police and what they doas the sole preserve of a single force. Of course, even at the height of the criminal jus-tice state, the police were never entirely alone.4 Preventing crime, maintaining socialorder and even apprehending offenders were tasks shared by private citizens, commu-nities and private security agents (private detectives, door personnel, in-house securityoperatives and so on). Private entrepreneurs continued to ply their trade alongside andsometimes in partnership with the officially dominant state agents of crime control. 3 Source: Travis (2004). 4 By the 1960s, public police were already outnumbered by private security employees. Source: Jones and Newburn (2002: 133–4). 81
    • ZEDNERInformal and voluntary agents of social control also played an important part in ordermaintenance and low-level crime control. And, yet, the symbolic (if not numerical)dominance of the police since their formation was an emblematic expression of stateauthority and important justification for the very being of the modern state. None of this is any longer true. The police, at first grudgingly and later with growingrealism, if no little hostility, have conceded that they no longer walk alone. Seniorpolice officers have moved from denigrating their emergent commercial rivals toacknowledging that limits to their own capacity create spaces in which commercialpolicing inevitably flourishes. Despite their continuing ambivalence, the police haverecognized that private security providers help to meet public and corporate demandsfor protection not readily satisfied under conditions of fiscal restraint.5 This reluctantacknowledgement is evidenced by the fact that police chiefs talk openly about the‘extended policing family’, ‘light blue policing’, pluralism and partnerships or, morebitterly, of the ‘Balkanization’ of policing. It is no longer unknown for police chiefs toask the previously unthinkable question: ‘Why should the police service retain itsmonopoly over policing?’6 The tens of thousands of private security personnel whonow outnumber the police in several Western nations do not replace them (far from it)but render them but one agency among many. In short, to the extent that it no longermakes sense to talk of ‘the police’, we might be said to have entered an era ‘after thepolice’. Whether it was ever legitimate to talk of the police singular is, as we haveobserved, doubtful. Accordingly, it may be that the significant shift lies in the loss oftheir previously privileged position of symbolic dominance rather than in structuralchange per se. Finally, what should we understand by ‘policing’? Whilst it has served us well, theconcept of policing as a state activity is now becoming an intellectual straitjacket. It hin-ders us from developing concepts apposite to the more diverse, complex sources ofsecurity that are rapidly replacing the police (Johnston 1992; Jones and Newburn1998). Jones and Newburn have formulated an excellent definition of policing as anactivity that has been widely adopted. In brief, it pertains to ‘those organized forms oforder-maintenance, peacekeeping, rule or law enforcement, crime investigation andprevention and other forms of investigation and information-brokering’ ( Jones andNewburn 1998: 18). But if our primary interest is normative, then a descriptive accountof policing as an activity may be less useful than a theoretical conception that identifiesthe goods that policing seeks to secure and protect. The concept of policing long predates the activities of state officers. In continentalEurope, historically, it had much broader connotations related to ideas of good govern-ment. In the German tradition, for example, the concept of Polizei combined three dis-tinct notions: that of the condition of order in the community or the prerequisites togood order; that of laws whose object was the establishment and maintenance of goodorder; and, finally, a more narrowly defined meaning of the contents of specific rulesor legislation pertaining to ‘police matters’ or the regulation of conduct tending todisorder. To these early concepts of Polizei joined a theological literature of Polizei: ‘theorder of estates’ or the necessary foundations for a well regulated community 5 Quite apart from providing lucrative employment for retiring police officers (Johnston 2003: 202). 6 A landmark speech given by Sir Ian Blair, Deputy Commissioner of the Metropolitan Police, in 1998 was entitled ‘Where do thePolice fit into Policing?’. See also Childs (2001), cited in Johnston (2003: 199). 82
    • POLICING BEFORE AND AFTER THE POLICE(Kneymeyer 1980: 179). Even more germane to our task is the emergence in the eight-eenth century of Polizeiwissenschaft, concerned not only with analysing the condition ofcommunal order but also the means to be deployed in order to achieve this condition.Polizeiwissenschaft thus combined both descriptions of order and debates about thepractical means and institutions necessary to its realization. Always bearing in mind thevery different historical development of policing in continental Europe and in Britain,it may be this more expansive definition best furnishes foundations for reflecting notonly upon what policing is but what it ought to be. Some Historical JuxtapositionsIn what follows, I subject claims that we are entering a new era in policing to criticalscrutiny by revealing many current developments to be far from new. I do so by theruse of historical juxtaposition between these developments and what might be seen astheir eighteenth-century antecedents. Tracing parallels in this way permits us better toidentify what is really new and what is not.From thief-takers to the global security marketOne of the signatory claims of the modern state was its assumption of primary responsi-bility for crime control and punishment. Central to this claim was the ideological con-struction of the state’s monopoly of violence through the twin engines of police andarmy. This construction was effectively manufactured and maintained in the face of analtogether more complicated empirical reality. As we have observed, even at the heightof the modern criminal justice state, sources of crime control were more variegatedand dispersed than the claim to a state monopoly acknowledged. Today, through the deliberate stimulation of competition, the neo-liberal state hassubstantially relinquished its former claim to dominance of policing. It openly acceptsthat it is but one node among many. Its responsibility for crime control is supplementedby the fostering of a multiplicity of providers of policing services who are invited tocooperate and, increasingly, to compete with one another. Fostering competition is aninherent facet of neo-liberalism, with its ideological commitment to the creation of amarket society ‘in which the pursuit of private gain becomes the dominant organizingprinciple of social and economic life’ (Currie 1997: 147). These re-emerging markets in policing exhibit certain similarities with those thatflourished prior to the formation of the police. Then, as McMullen observes, ‘the marketfor private gain in crime control was extensive, innovative, and elastic. It was driven bythe provision of rewards, immunities, and exemptions’ (McMullen 1996: 89; 1998: 99).Thief-takers and paid watchmen policed not out of public spirit, but for personal gain.Private informal means of dealing with offenders were both common and, in caseswhere the public interest was not great, condoned by magistrates. Payment of rewardswas widely practised, despite legislation making it a capital offence to take a reward forthe return of stolen goods and imposing a £50 fine for advertising such a reward.7 Itwas rightly feared that paying rewards to thief-takers encouraged crime rather than pre-venting it. Since thief-takers commonly paid indigents to thieve in order to claim the 7 Legislation of 1717 and 1752, respectively, cited in Beattie (1986: 39). 83
    • ZEDNERreward for the apprehension of the stolen goods, systems of rewards exacerbated thevery problem they were supposed to solve (Dodsworth 2004: 207). In some areas, thief-takers enjoyed a virtual monopoly of policing, protected by their clients and effectivelylicensed by the manipulation of pardons and rewards to determine which thievesenjoyed immunity and which did not. Such was their power that Rock observes ‘theyappeared to engage in the business of wholesale crime-farming, carefully reaping theprofits from cultivated areas of rule breaking’ (Rock 1983: 214). It is perhaps surprisingthen that in their early proposals for the development of a so-called ‘monied police’,writers like Fielding promoted ‘real and useful thief-takers’ who, following the modelof their mercenary forebears, would take profits from rewards and privately paid fees(McMullen 1998: 103). The eighteenth-century market in policing was extensive. It reached well beyond thethief-takers and the monied police to include turnpike keepers, pawnbrokers and inn-keepers in a complex of policing relations that anticipated the dispersed ‘security net-works’ that increasingly characterize today’s provision. Rock’s observation that ‘justicecame to resemble a market place in which an elaborate trading economy developed’(Rock 1983: 203) prefigures similar observations made about the more recent rise (orre-emergence) of market societies (Taylor 1999). Today, policing is again the acknowl-edged task of clusters of public, communal and private ventures. The most salient dif-ference is that whereas pre-industrial markets were small and localized, today’s marketsare global and, at the top end, dominated by multinational conglomerates. Vast privatesecurity companies seek to exploit market opportunities, expand turnover and maxi-mize returns to their shareholders (South 1988; Johnston 1992). Though the scale isdifferent, the centrality of the profit motive remains.From classical economics to rational choice theoryIn large part, the present re-emergence of a market in crime control arises from neo-liberal political thought and from the growing dominance of economic analysis of crimeand crime control. Instead of regarding crime as aberrant—the product of pathology,delinquency or deviancy—economic analysis re-conceives crime as ‘a routine activity’—the result of ‘opportunity’ (Clarke 1995: 91), and an ineradicable ‘fact of everyday life’(Felson 2002: Chapter 11) whose costs can be calculated and risks minimized. The impactof rational choice theory, in particular, has been described as ‘nothing short of theinvasion of economic man . . . the ultimate imperialist assault of economics on sociology—the subordination of homo sociologicus to homo economicus’ (Baert 1998: 154). Curiously,whilst economic analysis has made enormous inroads into academic thought in neigh-bouring social science disciplines, legal and criminological scholarship in Britain atleast (things look very different in America)8 has been far slower to acknowledge thedegree to which economic thinking drives modern policy making, including crime control. Modern economic analysis of crime arguably has more commonality with theeighteenth-century Weltanschauung than with either nineteenth-century positivist accountsof crime as the product of degeneracy or pathology, or twentieth-century diagnoses ofdelinquency as open to treatment and reform. Although it is undoubtedly more subtle 8 Perhaps because, in America, law is studied as a second degree, far more people reach legal studies with a background ineconomics. 84
    • POLICING BEFORE AND AFTER THE POLICEand sophisticated, modern economic analysis recalls the classical economic thoughtof eighteenth-century political economists. And its implications for policy makinghave clear antecedents in Benthamism, itself based upon the economic logic of utilitymaximization. Reading Home Office policy papers, like the highly influential position paper byClarke and Felson, ‘Opportunity Makes the Thief’ (Felson and Clarke 1998), it is hardto resist drawing parallels with the works of eighteenth-century social commentators.That paper de-dramatizes crime and presents it as a routine activity, carried out byordinary individuals exposed to everyday criminogenic situations. It explains rises incrime less by reference to changes in demography, social structure or socializationprocesses, and instead by reference to the multiplication of opportunity. No wonderthen that when eighteenth-century writings evince an acceptance of the normality ofcrime as an ineradicable accompaniment of urban life, it sounds surprisingly modern toour ears. Take, for example, the observation by William Paley that the growth of Englishcities ‘multiply crimes by presenting easier opportunities and more incentive to liber-tinism . . . by collecting thieves and robbers into the same neighbourhood, which ena-bles them to form communications and confederacies; but principally by the refugethey afford to villainy, in means of concealment, and of subsisting in secrecy whichcrowded towns supply to men of every description’ (quoted in Philips 1980). Colquhoun,Chadwick and others likewise dismissed diagnoses of crime as pathological or the resultof socio-economic disadvantage, suggesting that it arose primarily from growing oppor-tunities to secure property without the effort of labour. A common focus of concernwas the moored ships, with their temptingly stacked cargoes, that lined the RiverThames in London, which, by their mere presence, were said to invite systematic plun-der by river workers. It may not be too far-fetched to see the building of the West IndiaDocks as an early experiment in situational crime prevention.From social prophylaxis to situational crime preventionOne of the most important effects of modern economic analysis is to foster a prospec-tive re-orientation towards actuarial calculation and risk reduction. In so doing, it shiftsfocus away from the retrospective workings of the criminal process, trial and punish-ment, and towards the physical environments and opportunity structures in whichcrime is committed. The criminal justice process becomes but one tool in an array ofpreventive activities undertaken by the community, local authorities and private enter-prise. State policing clearly remains important but, in significant respects, it too ismoving outside the norms and conventions of the criminal justice process. Whereascrime prevention was somewhat marginal to the working of the criminal justice state,the new prospective orientations render prevention central. Again, illuminating parallels can be drawn with the eighteenth century. Eighteenth-century policing experts regarded prevention as more important than the retrospectivefunctions of arrest, detention and prosecution that later came to characterize modernpolicing. The vocabularies of ‘preventive justice’, of ‘social prophylaxis’ and of the ‘pre-ventive police’ (Chadwick 1829) underscore the degree to which prevention was pre-ferred over prosecution. Henry Fielding, for example, insisted ‘it is better to preventeven one man from being a rogue than apprehending and bringing forty to justice’(cited in McMullen 1998: 102). Blackstone observed ‘Preventive justice is upon every 85
    • ZEDNERprinciple of reason, of humanity, and of sound policy, preferable in all respects to pun-ishing justice’.9 And Colquhoun has been widely acknowledged by criminologists as theseminal architect of crime prevention as a direct alternative to the formation of aunitary state police (Radzinowicz 1956: Chapter 10; Reiner 1988: 142–3; Garland 2001:31–2). His preferred response was shared responsibility, informal surveillance and theavoidance of criminal opportunities. An interesting question here is why this notionof the preventive police was eclipsed by the Peelian professional force to become whatGarland calls the ‘path not taken’ (Garland 2001: 31–2). Colquhoun also drew up several extensive inventories of the ‘dangerous classes’ anda ‘catalogue of Human Depravity’10 that eerily anticipate modern statistical forms andoffender registers. The considerable reliance he placed on these inventories of aggre-gate suspect populations evokes what Feeley and Simon (perhaps erroneously, as it turnsout) term the ‘New Penology’: ‘ . . . it is actuarial. It is concerned with techniques foridentifying, classifying and managing groups assorted by levels of dangerous’ (Feeleyand Simon 1992; 1994: 173). Modern actuarial techniques, like their eighteenth-century forebears, rely upon systematized techniques of statistical profiling to identifyand manage putative risks. The sophistication of modem statistical techniques, the powerof computational technologies and information networks is, of course, beyond eight-eenth-century imagining but the basic logic is not dissimilar.Pre- and post-Keynesian prudentialismAnother important aspect of the increasingly prospective orientation of present-daypolicing is that instead of being managed collectively by social institutions, risksbecome the subject of ‘Post-Keynesian Prudentialism’ or the logic of private insurance(Stenson 1996: 109). Insurance companies can be seen as prime movers in many keyaspects of change, not least the expansion of the private security industry (Ericson et al.2000; 2003). They provide incentives for investment in security measures throughreductions in insurance premiums; they require corporate and private clients to pur-chase security equipment and services; and provide advice, propose service providers,police take-up and monitor quality of installations.11 The insurance industry hasacquired this extraordinary power in part because the state has increasingly relin-quished its role as underwriter of the hazards of modern life. An important politicalassumption of the criminal justice state was that risks should be spread and that socialinsurance was the most effective means of ensuring that those least able to bear theburdens of loss would receive some measure of public protection from them.12 Facedwith the spiraling costs of social insurance, the state now promotes personal responsi-bility and private insurance (O’Malley 1992). One reason why it has been forced toretreat in this way is that by setting crime as a central platform of their political man-date, successive governments created for themselves a fiscal and political black hole.Whereas in the heyday of the criminal justice state it was assumed that taxation would 9 Blackstone, W., Commentaries of the Laws of England, cited in Radzinowicz (1956: 418). 10 For example, Colquhoun Treatise on Indigence, Treatise on the Police of the Metropolis etc., cited in ibid. pp. 239–40. 11 For example, subscribers to private alarm centres in the Netherlands grew 1100% in the 15 years to 1998 (van Dijk and deWaard 2001). 12 Hence, for example, the establishment of the state-funded Criminal Injuries Compensation Scheme in 1964 to provide limitedrecompense to victims of violent crime. 86
    • POLICING BEFORE AND AFTER THE POLICEprovide a sufficient base to fund policing, increasing recognition of the limits to stateresources and the political costs of so burdening the taxpayer, in tandem with a pro-tracted period of conservative political dominance, fostered an eagerness to see othersshare the burden of these responsibilities. Fiscal restraint is a political value that was also central to eighteenth-century notionsof good government, with its strong emphasis on economic independence and individ-ual self-reliance. Adam Smith, for example, insisted ‘it is not so much the regulations ofthe police which preserves the security of a nation as the custom of having in it as fewservants and dependents as possible. Nothing tends so much to corrupt and enervateand debase the mind as dependency, and nothing gives such noble and generousnotions of probity as freedom and independency. Commerce is one great preventive ofthis custom’ (Smith 1978: 333). Of course, here, the parallels have already been moreexplicitly made. The reliance of the Conservative governments of the 1980s and1990s upon the policy papers of the Adam Smith Institute paid a direct tribute to theeighteenth-century progenitor of fiscal restraint and laissez faire in domestic policy. Thissaid, despite a strong political commitment to economy, it is an interesting paradoxthat state expenditure on policing has continued to grow considerably and in markedexcess of other areas of state provision.13 Perhaps the stronger parallel, then, is a deepsuspicion of the state and an assumption that minimalism is to be preferred over ‘exces-sive’ government.From the spirit of self-help to responsibilizationChanges in policing have important ramifications for the relationship between citizenand state. Whereas for the period of the criminal justice state, citizens were asked tohave faith in state provision and effectively to cede protection to official hands, prevent-ing crime is yet again said to be a matter of individual, communal and corporate respon-sibility. Successive governments have sought to promote active public cooperation withthe formal agencies of crime control. These campaigns invite public participation inactivities once reserved to the police: ‘walking with a purpose’, neighbourhood watch,citizens’ patrols and community safety initiatives, and, more recently, the disciplinaryrole imposed upon the families of those subject to curfew or anti-social behaviourorders. Described as ‘responsibilization’ strategies, they are commonly understood asmeans of deflecting former state obligations onto private citizens (though they can alsobe read as corporatist moves to bring them under state control). This shift from thecitizen as passive beneficiary of state provision to responsible subject and active partici-pant in policing is nowhere more evident than in respect of victims of crime. Oncemarginalized as the ‘forgotten actors’ in the criminal justice process whose role or pres-ence did not extend beyond providing information or serving as prosecution witnessesin court, victims are increasingly invited, even pressed, into service to write victim state-ments or participate in restorative justice conferences. In the burdens today thrown upon citizens, one can perceive important parallelswith those extant before the formation of the modern police. ‘Responsibilization’ has a 13 Expenditure on policing rose by 50 per cent in the decade following the election of Thatcher in 1979. Source: Johnston (1999: 135).The Conservatives saw nothing paradoxical about this and explicitly stated in their 1979 election manifesto that they intended tospend more on law and order as they economized elsewhere. 87
    • ZEDNERmore elegantly named forebear in ‘the spirit of self-help’ (Radzinowicz 1956: 100–3).Self-help was an all-important value at a time when the use of the army to keep thepeace was deeply suspect and a professional police yet a distant prospect. It was widelyaccepted that citizens had a duty to take action to protect themselves and their familiesby voluntarily coming together in informal networks and bands of mutual protection.As Rock has observed: ‘throughout the eighteenth century, the state depended on pri-vate self-interest as its cardinal means of exerting control. People were methodicallybribed, exhorted and coerced to transform themselves into agents of the state’ (Rock 1983:201). Institutions like the ancient ‘hue and cry’, still in existence in the mid-eighteenthcentury, required the men of a Hundred to go in pursuit of a felon once a constableraised the alarm. The office of constable was unpaid and filled in turn on a voluntarybasis for one year by members of the community. The Posse Comitatus, another ancientinstitution, gave the sheriff of a county the power to summon every person above15 years old and under the degree of a peer to attend under pain of fine and imprison-ment if they did not render their services. Evidence from court cases is that public helpin apprehending offenders was commonly expected and given (Beattie 1986: 36). In the second half of the eighteenth century, however, existing public-spirited, infor-mal and voluntary systems of social control worked less effectively in the growing townsand cities where large populations and greater mobility meant that social relationswere more loosely articulated. Those unwilling to take on the burdensome unpaidoffice of constable paid deputies to serve in their place. To supplement their incomes,these deputies sold protective and investigative services and, in so doing, turned a vol-untary civic duty into a profitable trade (Reynolds 1998). Likewise, magistrates oftenaccepted that office not out of a sense of duty, but because considerable profits were tobe had from selling their services. According to Hay and Snyder, some ‘were in effectthe security directors of important private interests’, for which claim they give the fol-lowing example: ‘the great engineering firm of Boulton and Watt near Birminghamdealt regularly with a few magistrates, who agreed to such convenient expedients aswhipping thieving employees at the factory itself, (Hay and Snyder 1989: 19). As in thiscase, protecting the profits of the manufacturers took priority over ensuring that justicewas seen to be done. Many magistrates, or ‘trading justices’ as they were scornfullyknown, were, to some degree, corrupt and it was financial gain not justice that moti-vated their service (Paley 1989: 100). In all these developments, one can identify a com-modification of justice that has distinct parallels with that occurring in the wider fieldof security today (Loader 1999; Zedner 2003a).From prosecution associations to the clubbing of securityIn the later eighteenth century, more formal systems of association came to replaceexisting informal communal efforts. As the financial burden of prosecution was aserious disincentive to bringing offenders to trial, it became common for propertiedmen to manufacture a form of mutual insurance by joining together to share costs ofcatching and prosecuting offenders (Shubert 1981; Hay and Snyder 1989: 26; King2000: 53–7). Prosecution associations and felons associations, as they were variouslyknown, bypassed the parish constable to take the prosecution of offenders into their ownhands. The first documented felons association was formed at Bretherton in Lancashirein 1744, when 21 people who described themselves as ‘landlords or inhabitants’ contracted 88
    • POLICING BEFORE AND AFTER THE POLICEfor a period of 21 years to share the costs of prosecuting offenders.14 Such was theirpopularity that over the course of the second half of the eighteenth century, hundredsof such associations were formed in villages, parishes and towns across Britain. Prosecution associations were generally devoted to protecting the interests of theirown members alone, with rival felons associations sometimes forming in the sametown. As one historian observes, there was a ‘general lack of co-operation among felonsassociations . . . with each association tending its own garden and showing no interestin fighting crime generally’ (Shubert 1981: 29). Small prosecution associations prolifer-ated, particularly in the 1780s, when it was thought that crime was being encouraged bythe uncertainty of prosecution. Unusually, in Mortlake, Surrey, in 1784, 45 residents ofthe parish pledged total annual contributions of more than £500 to pay rewards forevidence, whether the theft was from a member of the association or not, and to paycosts of victims of theft too poor to pay for prosecution themselves (Beattie 1986: 49).More typically, associations undertook to offer rewards only in respect of crimesagainst members and to pay the difference between the costs of prosecution and anycompensation awarded by the courts. That the protection offered by membership ofthese associations was, at the time, regarded as an ‘expression of the “clubbability” ofEnglishmen so noted by foreigners’ (Hay and Snyder 1989: 27) anticipates the presenttransformation of security into what economists term a ‘club good’, namely ‘one thatremains collectively available to members of the “club” but where non-members’ per-manent access to the good can be wholly or partially denied, controlled or charged’(Hope 2000: 86). Private prosecution associations relied upon an acceptance of communal responsi-bility and the fostering of bonds of mutuality. They were an important means of assist-ing their members in apprehending and prosecuting offenders; recovering stolengoods; gaining reimbursement if they had to bear the burden of prosecution; and alsoof providing conviviality and association (King 2000: 53–7). Some joined in the beliefthat merely having their name publicized on an association’s membership list providedprotection, since offenders would prefer to steal from non-members (King 2000: 56).The signalling and displacement effects of membership are not unlike those associatedwith membership of neighbourhood watch associations today. Like present-day com-munal and private security ventures, eighteenth-century prosecution associations weredesigned to supplement the existing statutory system rather than replace it and mayhave had the effect of bringing more cases into the system. Indeed, there is evidence tosuggest that those areas with active associations tended to create formal police forcesearlier than those without. Although these private associations grew out of dissatisfac-tion with existing public provision, they served also to foster its growth and found nodifficulty in cooperating with the newly formed public police forces. The Demand for Protection, Entrepreneurs, and the Role of the StateGeneralized insecurity and mounting demands for protection are also common featuresof both periods. In both, larger political and socio-economic anxieties coalesce aroundand are articulated through expressions of fear of crime. As Bauman observes of thepresent day: ‘ . . . genuine problems of insecurity and uncertainty have condensed into 14 Interestingly, the costs were shared in proportion to the rates charged on their lands for poor relief (Shubert 1981: 26). 89
    • ZEDNERthe anxiety about safety’ (Bauman 1998: 117). In the late eighteenth century, the senseof the ungovernability of urban society became all the more strongly felt in the after-math of the Gordon Riots that shook London in 1780. In the face of the palpable failureof government, the need for self-help was pressing. As the legal theorist, Sir SamuelRomilly, observed: ‘ . . . it had become necessary for every man to trust to himself for hissecurity’ (cited in Radzinowicz 1956: 100). As a result, several ‘Voluntary Associations forDefence’ were formed, which went beyond merely funding prosecution to undertakedetection and apprehension functions. For example, inhabitants in the BillingsgateWard in London joined together to form a voluntary defence association ‘for the Pro-tection of their Neighbours’ and their own Property, by the Exertion of every effectuallegal Method in the Assistance of the Civil Power, for the Preservation of the PublicPeace of this City’ (Radzinowicz 1956: 101). Although these self-help initiatives arose ina very different environment from that which pertains today, certain parallels with thepresent may be drawn. Members of voluntary initiatives tend to be propertied, articu-late, able to mobilize themselves, and ready to defend their interests. Those with greatestneed of protection are often least able to muster the necessary resources, most likely tobe excluded from communal initiatives and, hence, to suffer the displacement effectsof not being so protected (Hope 2000). Whereas, at least in its heyday, state policing tended to assume that its dominancerelied upon the suppression of private initiative, the rapid post-war growth of the volun-tary and private sectors has proven by no means inconsistent with the expansion ofstate crime control. The activities of communal and private entrepreneurs tend to stim-ulate demand for new forms of social control and, paradoxically, to fuel state activity sothat, as Feeley observes, although ‘privatization is promoted as a way of reducing the scopeof government activities, yet privatized penal policies have had precisely the oppositeeffect. When successful, private efforts have increased not decreased the reach of gov-ernment. In the long run they have expanded, not contracted public social control’(Feeley 2002: 322). This perhaps unexpected consequence arises from the fact that entre-preneurial energies foster innovation and, with it, new forms of social control, responsi-bility for which is, typically, then assumed by the state. Feeley thus shows that, historically,private entrepreneurship has been ‘the single most important source of innovation’(Feeley 2002: 324). Many of the central institutions of the modern criminal justice statearose out of initiatives originally promoted by voluntary associations or private contrac-tors. As this historical analysis makes clear, those who presently predict the ‘end of thepolice’ fail to observe the extent to which the expansion of private security is fomenting aparallel expansion both in the raw numbers of state police and in the range and scope oftheir activities. To the extent that we can talk about ‘policing after the police’, therefore,it is in the sense that multiple forces—commercial, communal and voluntary15—signify amaterial change that lays open to question the symbolic dominance of the state police. The Path to Anomia?Many commentators identify contemporary developments as late or post-modern (e.g.Reiner 1992; Garland 2001). Others identify reversions to what they term ‘pre-modernpenality’. For example, in the re-emergence of forms of degrading physical labour, 15 Or what Crawford et al. describe as the mixed economy of policing (Crawford et al. 2005). 90
    • POLICING BEFORE AND AFTER THE POLICEsuch as ‘punitive work orders’ introduced in Australia’s Northern Territory, Pratt findsa direct and disturbing parallel with the ‘wheelbarrow men’, who, in antebellumUnited States, ‘ironed and chained, with shaved heads and coarse uniforms lettered toindicate the crime committed . . . cleaned and repaired the streets of Philadelphia’(Pratt 2000: 128). For Pratt, such developments signal the more general renewal ofinterest in solutions derived from pre-modern penal repertoires. Likewise, the increas-ing use of imprisonment as a form of custodial warehousing (Simon 1999) has beensaid to resemble more closely the pre-Panopticon forebears of the modern prison thanthe nineteenth-century ‘reformed penitentiary’ and its successors. Whether or to whatdegree the labels pre- or post-modern aid our understanding is debatable, however. Tracing master patterns in a bid to make larger epochal claims is sociologically ques-tionable. Understanding contemporary developments requires a more subtle apprecia-tion of continuities and discontinuities between past and present. The eighteenthcentury—indeed, the past in general—is a different country (Bosworth 2001). It wouldnot do to overplay its resemblances to the present day or to overlook significant pointsof divergence. Modern trends in policing take place in the shadow of the modern stateand in the altered context of increasingly globalized social and economic relations,mass media and extraordinary technological development—to name just a few of themore obvious differences. Although the present market in policing, like its eighteenth-century precursor, is chiefly characterized by small-scale, local concerns,16 there are sig-nificant outliers in the form of multinational corporations whose size, wealth andpower dwarf anything previously seen. A few are vast conglomerates like Securitas AB,who employ over 210,000 personnel, and Group4 Falk A/S, who employ over 115,000.The rapid growth of these global security companies arises from a steady round of take-overs and mergers that result in corporations, each with enormous turnovers, powerand political clout. Curiously, little attention has yet been paid to their influence onpolicing at global, national and local levels.17 We may be returning to a market in policing but the remarkable bifurcation in thesize and scale of security operations creates a much more differentiated market thanthat which pertained two centuries ago. Although an overarching normative frame-work is highly desirable, it is questionable whether a single regulatory apparatus couldeffectively be applied to such divergent operations. For example, large operators enjoyeconomies of scale that permit them to bear the burdens of compliance with securityregulations that would likely push smaller operators out of business. It would appearthat the biggest operators positively welcome and encourage regulatory oversight forprecisely this reason.18 Aside from remarkable increases in the numbers of people employed in the privatesecurity industry, another significant development is the growth of security tech-nologies including the manufacture, retailing and installation of locks, bolts, bars, alarmsystems, CCTV and other high-tech surveillance equipment. Clearly, the proliferationof surveillance technologies raises new considerations and yet the implications of thesesecurity technologies for civil liberties, for the differential protection that their purchase 16 Jones and Newburn conducted a national survey that suggested that 51 per cent of private security firms employed five or fewerpeople; another 37 per cent employed between 5 and 50 people (Jones and Newburn 1998: 80). 17 On the limits and inconsistent findings of such research as there is on the private security industry, see Wakefield (2003: Chapter 4). 18 An impression endorsed by speeches made by the presidents of large security conglomerates represented at a Law Commissionof Canada conference ‘In Search of Security’, Montreal, February 2003. 91
    • ZEDNERprovides and for the displacement of crime are hardly new. Protecting justice, fairness,accountability, privacy, freedom and autonomy from the threats posed by the prolifera-tion of private security technologies may possibly be served by revisiting Enlightenmentelaborations of these fundamental goods. To date, criminologists and sociologists have focused their attention on mappingand explaining contemporary changes in policing. They have been rather less interes-ted in the political and ethical implications of these changes. Fewer scholars have triedto develop theoretical resources with which to determine what costs are consequentupon these changes and how to minimize them.19 Part of the reason may be that, asBraithwaite has observed: ‘while criminologists take explanatory theory very seriously,they do not take normative theory seriously at all’ (Braithwaite 2000b: 87). Normativetheory has been long regarded as the province of jurisprudence, moral philosophy andpolitical theory, with the result that, with the notable exception of penal theory, crimi-nologists have not tended to regard normative theorizing as lying within their province. If it is the case that the modernist project of promoting policing as a public good isbeing replaced by something akin to eighteenth-century notions of policing and pro-tection as club goods or tradable commodities, then worrisome consequences follow.Although the practice of state policing never fulfilled its collectivist pretensions, it didprofess, at least, to provide a public service available to all. To the extent that it failed tofulfil this idea, as fail it did, its failing could be measured, criticized and sanctioned.20Private providers make no such claim but avowedly seek to protect the partisan interests(whether individual, communal or commercial) of those who pay. No surprise here: itis central to the logic of market societies that goods be distributed not according toneed, but to the ability of the consumer to buy. Most grievously, the freedom of the market so triumphantly promoted by neo-liberalismhas worrisome implications for the maintenance of norms. As Dahrendorf observes:‘Freedom to choose means almost by definition the absence of normative constraintson our actions’ (Dahrendorf 1985: 43). If a central function of policing and punish-ment is the upholding of norms through the authoritative imposition of sanctions ontransgressors,21 then ceding policing to the private sphere raises the spectre of a rapiddescent to Anomia—a state of society best described as the opposite condition to socialorder (Dahrendorf 1985: Chapter 1: ‘The Road to Anomia’). When security servicesare increasingly provided by private, commercial organizations, as well as communaland voluntary endeavour, is the reassertion of policing as a public good no more thanan attempt, as Crawford suggests, ‘to try to put the genie back in the bottle (if thereever was one in the first instance)’?22 Distinguishing between the delivery of policing services and their governance providesone way out of this conundrum. With policing increasingly shared amongst individual,communal and private providers, the state can no longer claim a monopoly over polic-ing. It can, nonetheless, insist upon its right to delineate and uphold the normativestructures essential both to protect the public interest in policing and to maintain the 19 Notable exceptions are Loader (1997), Loader and Walker (2001) and Hudson (2003). 20 For example, the Macpherson Enquiry (following the death of black teenager, Stephen Lawrence) infamously condemned thepolice for their failure to provide adequate protection to members of ethnic minority communities (Macpherson 1999). 21 One does not need to be a fully fledged Durkheimian to accept that these are important functions of the criminal justice state.See Durkheim (1984) and Lukes and Scull (1983: Chapters 3 and 4). 22 Crawford (2003: 162); on policing as a public good, see Loader and Walker (2001). 92
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