The New Penology

The New Penology refers to changes in the roles played by control agencies (both formal, such as the police and informal, such as schools) in contemporary societies that can be summarised in terms of three main ideas:

1. The Extension of control

This refers to the idea that social controls in the late 20^th century have been increasingly extended, both in terms of the number of people subjected to such controls and, not coincidentally perhaps, the kinds of behaviours that have been increasingly subjected to such controls. In this respect  Cohen (1979) has suggested we need to think about three ways social controls have gradually been extended in modern societies:

In this respect the argument here is that modern penology has shifted the focus away from the simple punishment of objective offences to ideas about risk management and the control of “anti-social behaviours”.

Risk management, for example, represents part of what Feely and Simon (1992) have termed a “new discourse” around how control agencies are encouraged to view crime – one that replaces conventional ideas about moral or medical descriptions of the individual with an actuarial approach that involves “probabilistic calculations and statistical distributions applied to populations” (actuaries working for insurance companies, for example, mathematically calculate levels of risk, such as things like ‘early death’ probabilities for those buying life insurance). What has been called an “economic approach” to crime and social control involves things like:

• identifying and managing “unruly groups” with high probabilities of criminal involvement. On the punitive side this may involve the increased use of formal police resources, such as more-frequent patrols, while less-punitive interventions may be made through schools and social services.

• the development of “low-cost” / “cost-effective” forms of control such as electronic tagging.

• managingcriminal activity through risk assessments that identify possible situations and areas that require additional surveillance or police resources. This may involve processes such as “hotspot policing”, whereby more police resources are targeted at very specific public areas (such as clubs and pubs) that attract large number of young people.

• resource targeting is similar to the above but involves the idea of concentrating police resources in areas where “high probability offending groups” such as young, working-class men live, work and play.

• sentencing according to risk acknowledges the idea that incarceration in prisons doesn’t reform offenders, but when offenders are in prison they can’t commit further crimes. Rather than sentencing offenders for what they’ve done, therefore, sentencing should reflect the risk of reoffending; habitual offenders, for example, represent a high-risk category and should be given longer sentences than low-risk offenders.

One particularly notable example of this kind of sentencing was the introduction of Indeterminate Sentences for Public Protection (IPPs) in 2005. Under this policy an offender convicted of “a serious offence” and who was considered “dangerous” to the public could be kept in prison until they were “no-longer deemed a threat to the public”. Even though IPPs were abolished in 2012 “for all new offences”, those originally sentenced under the policy are still subject to it. As of 2024 there were still over 1,000 prisoners serving indeterminate sentences who are currently designated as too dangerous to release by the Parole Board.

A second way social controls have been extended is in terms of thinning the mesh.

If you think about crime control as being like a fishing net, the larger the gaps in the netting the more the “smaller fish” – those who commit only very minor offences or whose behaviour is not actually construed as criminal – can avoid being scooped-up alongside much bigger fish, such as  those who commit serious criminal offences.

Firstly, the introduction of new technologies into policing, such as the widespread use of surveillance techniques such as CCTV. These technologies, by their very nature, record all instances of crime and this can lead to increased prosecutions as people whose behaviour would have ordinarily escaped the attention of law enforcement are caught in the net.

A second example might be something like the development of risk profiling, a process known more-colloquially as predictive policing. This involves using actuarial techniques to determine a range of “risk factors” associated with crime and criminality. These might include factors such as age, gender, socio-economic status and individual behaviour patterns, although the precise mechanics for this type of policing may vary across different police forces. By assessing various “known risk factors that lead to crime” it’s possible to classify different social groups as “potential offenders” prior to any actual offences having taken place.

The gradual introduction of Artificial Intelligence (AI) programmes into this situation should lead to a more-nuanced use of police risk profiling, although a range of potential problems – from the mis-labelling of potential deviants, through the morality of keeping large sections of the population under systematic surveillance to widespread deficiencies in the objectivity of the data used to train AI systems – remain to be resolved. In terms of thinning the mesh, however, risk profiling leads to the more-intrusive and intensive policing of targeted groups which, in turn, leads to the discovery of higher levels of criminal involvement.

A slightly different example of how more people can be drawn into the criminal justice system  comes in the form of 1998 Crime and Disorder Act which saw the introduction of Anti-Social Behaviour Orders (ASBOs). These were civil (i.e. non-criminal) orders aimed at curbing “persistent anti-social behaviours” such as the “intimidating behaviour” of small groups of young men standing around on street corners. Those subject to such  orders could be banned from certain areas or from associating with particular people. The unique aspect of this type of order was that while the behaviour itself was not criminal, breaching an ASBO was a criminal offence.

Although ASBOs proved to be ineffective in reducing “anti-social behaviour” their abolition in England and Wales in the 2014 Crime and Policing Act was simply a precursor to the introduction of an even wider range of “anti-social” powers that could be used by both the police and informal control agencies such as local councils. The latter, for example, are empowered to issue Public Spaces Protection Orders (PSPOs) that prohibit certain activities, such as loitering, in a defined area. Again, while the behaviour itself is not criminal, breaching the order is.

The third kind of mesh thinning is one that, historically, has been largely unintended in the sense it involves a range of judicial and extra-judicial interventions that were originally designed to relieve the pressure on the criminal justice system (the incarceration rate in England and Wales is currently (2024) around 136 per 100,000 inhabitants, one of the higher rates in Western Europe). While the intention was to remove all but the most necessary punitive measures (such as long prison sentences for violent crime) the actual result was more and more individuals being drawn into the overall system of social control.  As Cohen (1979) put it:

“The major results of the new movements towards ‘community’ and ‘diversion’ have been to increase rather than decrease the amount of intervention directed at many groups of deviants in the system and, probably, to increase rather than decrease the total number who get into the system in the first place. In other words: ‘alternatives’ become not alternatives at all but new programs which supplement the existing system or else expand it by attracting new populations”.

While this does not necessarily mean participants in programs such as Youth Crime Prevention and DIVERT (evaluations of which have been carried-out by the College of Policing if you’re interested) demonstrated increased criminality; rather, the point being made here is that such programs, whether successful in terms of reducing crime or not, invariably draw more and greater numbers of the population into the locus of social control.

The third way controls have been extended is through the idea of widening the net, something that refers to the way new policing strategies and policies draw greater numbers of individuals into the overall system of social control, whether through hard strategies such as expanding the number of prisons or softer strategies such as the Community Service programme.

While net widening and mesh thinning are broadly similar in effect, the main difference between the two is that the former involves the introduction of new offences, resulting in more behaviours becoming defined as crimes. In England, for example, the past 15 years has seen the introduction of a wide range of new offences. The Racial and Religious Hatred Act (2006) for example, criminalised “incitement to hatred based on religion” and the definition of a “hate crime” was extended in 2007 to cover hostility or prejudice towards cultural characteristics such as race, religion, disability, sexual orientation and transgender identity.

More-recently, the 2025 Crime and Policing Bill introduced new offences such as the possession of a knife with intent to use it violently, further antisocial behaviour laws and new offences covering cybercrimes (such as the use of so-called “deepfake technology”). The latter extended the scope of the Online Safety Act (2023), legislation that covered new crimes such as “taking intimate images without consent” and acts like “downblousing” and “upskirting”.

2. The Nature of control

Foucault (1983) argued that the panoptic prison (an architectural design that allowed warders to constantly monitor prisoners without the latter knowing exactly when they were being watched) represented ‘the essence of power’ because it was based on differential access to knowledge.

Surveillance was also, he argued (1980), both ‘global and individual’ (warders could view both the whole prison and individual prisoners).

Shearing and Stenning (1985) develop this idea in the context of the kind of control processes described by Cohen when they describe postmodern forms of surveillance in terms of disneyfication:

Disney World, they argue, is a clever system of social control, covering things like what you can do, and when you can do it, all designed to move people  through the Park without them having an awareness of being controlled. This is a form of “disguised control” whereby our behaviour is controlled without our awareness of such control – the control, in this respect, being disguised in things like safety protocols: we are encouraged “to obey” because those making such demands are able to convince us we have a duty to obey “for our own personal safety” (rather than, say, for  the commercial convenience of the Disney Corporation).

For Shearing and Stenning the kinds of controls on display in places like Disneyland are indicative of the changing nature of social controls in contemporary societies, away from confrontational, brute-force, compulsions and towards co-opting the individual into a system of their own self-control: we obey commands because we are convinced they are in our own best interests to obey rather than because we are made to obey.

As you might expect, the changing nature of social control is reflected in the way such controls present themselves as:

• Services: the controls to which we submit are disguised as services “for our own good”.

• pervasive: they cover all areas of social and personal life

• invisible: there is little awareness of being controlled

• embedded: in ‘other, less alarming, structures’ (such as safety issues)

• seamless: they have no beginning or end.

3. Changes in control

Shearing and Stenning argue this creates a situation where control is apparently consensual because people willingly participate in their own control (as with, for example, the use of CCTV cameras in shops and arcades). This type of surveillance is, they argue, indicative of changes in control expressed, on one level, by proactive procedures designed to prevent crime by taking action before an offence is committed. This, as you may have noticed, links back to the various ways controls have been extended in modern societies through such practices as risk profiling.

One important change, in this respect, is the selling of extended social controls through the concept of ‘at risk’ populations: this encompasses both people who, on the basis of known probabilities, are the most likely to commit offences “at some time in the future” and, more-importantly perhaps, this extends to general populations who need to be controlled “for their own safety and security”.

The security dimension to social control in contemporary societies is, for Shearing and Stenning, one that has similarly undergone subtle changes over the past 50 years. In particular, they argue, we’re now seeing “the commodification of security” – the idea that various forms of protection from harm have become privatised as services available to those able and willing to pay for them.

One notable implications of this change in the types of control people experience in modern societies is a shift away from simple state controls to more-complex forms of private (corporate) control of public spaces and bodies…

References

Cohen, Stanley, 1979, ‘The Punitive City: notes on the dispersal of social control’: Contemporary Crises, Vol. 3, No. 4: Elsevier Publishing Co

Feely, Malcolm and Simon, Jonathon, 1992, ‘The New Penology: Notes on the Emerging Strategy of Corrections and Its Implications’: Criminology, Vol. 30, No. 4

Foucault, Michel, 1983, Beyond Structuralism and Hermeneutics (2^nd edition): University of Chicago Press

Foucault, Michel, 1980, Power/Knowledge: Selected Interviews and Other Writings, 1972–1977: Pantheon

Shearing, Clifford and Stenning, Philip, 1985, ‘From Panopticon to Disney World: the development of discipline’: in Anthony Doob and Edward Greenspan (eds), Perspectives in Criminal Law: Essays in Honour of John Ll. J. Edwards: Canada Law Book, Inc.