REGULATING DEVIANCE

Vol. 19 No. 9 (September, 2009) pp.712-715

REGULATING DEVIANCE: THE REDIRECTION OF CRIMINALISATION AND THE FUTURES OF CRIMINAL LAW, by Bernadette McSherry, Alan North and Simon Bronitt (eds). Onati International Series in Law and Society. Portland, OR and Oxford, UK: Hart Publishing, 2008. 310pp. Hardback. $90.00/£45.00. ISBN: 9781841138893. Paperback. $44.00/£22.00. ISBN: 9781841138909.

Reviewed by J. Michael Olivero, Department of Law and Justice, Central Washington University. Email: olivero [at] cwu.edu.

This book is a collection of contributions from a variety of international scholars, all of whom are academicians outside of the United States. It consists of 12 chapters divided into five parts: Part 1: An Introduction; Part 2: Shifts in Criminal Justice Policies; Part 3: The Quest for Security; Part 4: The Scope and Justification of Sexual Offenses; and Part 5: Codification and the Liberal Promise.

The introductory chapter in Part 1, “Regulating Deviance: The Redirection of Criminalisation and the Future of Criminal Law,” was written by the book’s editors, Burnadette McSherry, Alan Norris and Simon Bronitt. They assert that the nature of Western criminal justice systems is changing and that this collection provides an understanding of what the criminal law is, has been and should be. They conclude that this work reveals the durability of liberal ideas in the criminal law, exposes the challenges these ideas face and contributes to the debate about how matters will and ought to proceed.

Part 2 focuses upon shifts in criminal justice policies and consists of three chapters, “Citizenship, Authoritarianism and the Changing Scope of the Criminal Law,” written by Alan Norrie, “Fixing the Future? The Pre-emptive Turn in Criminal Justice,” by Lucia Zedner, and “‘Victim-Driven’ Criminalisation? Some Recent Trends in the Expansion of the Criminal Law,” by Leslie Sebba.

Norrie connects recent development in criminal law with changes in three forms of citizenship – civil, political and social – which once worked in concert to obscure the presence of authoritarianism in liberal criminal law. He posits that criminal law has developed in three significant ways: 1. increased “responsibilisation” marked by a decline in rehabilitation philosophy and an emphasis on retribution and an emergence of the relevance of crime victims; 2. Increasing “dangerousness” attributed to a minority of criminals requiring exceptional punishment and control; and, 3. increasing “regulation” and new forms of criminal justice. These developments are linked to neo-liberal conceptions of individual legal subjectivity and reliance upon obscure authoritarianism in the liberal law. This chapter provides an infrastructure for understanding some of the other chapters in the collection.

Zedner analyzes Norrie’s development of “dangerousness” through a historical analysis of regulating those thought to be “dangerous.” Her analysis takes us from actuarial risk assessment to present day [*713] preemptive measures focused upon unknown but possible terrorist threats. In the process, she not only questions the construction and definition of what it means to be designated dangerous, but raises substantial issues as to liberal perspectives on the nature and operation of criminal law. Her analysis examines British measures, such as the Prevention of Terrorism Acts of 2005 and 2006, that seem to provide the executive preemptive freedom without oversight in the name of security and needing to protect the citizenry from the unknown.

Sebba outlines the shift, or better yet the expansion, in the development of criminal law from traditional areas into the creation of crimes that are ‘victim oriented.’ While the unit concerns shifts in criminal justice policy, the work does not seem to go well with the two previous chapters by Norrie and Zedner. He focuses on victim driven kinds of crimes such as ‘child smacking,’ holocaust denial, hate crimes, and the like. His analysis seems to suggest that the driving force behind victim driven crime development is twofold – the desire by legislative bodies, not necessarily victim groups, to criminalize harm to victims, and as part of an increase in authoritarianism. Further, the attempt to criminalize legitimate harm provides the justification for authoritarian law and state power expansion, in much the same way as Zedner tells us that state prevention and protection from unknown terrorist threat allows authoritarian executive freedom.

Part 3 focuses upon the state’s pursuit of security and shifts from a general view of criminal justice policies, to specific measures to regulate terrorist activities and antisocial behavior. Part 3 consists of four chapters, “Criminal Law, Human Rights and Preventative Justice,” written by Andrew Ashworth, “The Theory of Vulnerable Autonomy and the Legitimacy of Civil Preventive Orders,” by Peter Ramsay, “Expanding the Boundaries of Inchoate Crimes: The Growing Reliance on Preparatory Offenses,” by Bernadette McSherry, and “Social Science and Criminal Law Reform: Beyond Mere Opinion Polling and Penal Populism,” by Mark Nolan.

Ainsworth examines increasing state regulation through the spread of civil preventative orders. While he agrees that the state should rightly be concerned with harm prevention and the reduction of risk, he is concerned with the justification used as rationales for preventative measures and worries that they transgress human rights. He is specifically concerned that governments now take protective measures through criminal justice systems invoking preventative rationales, even though the nature and magnitude of the threats are unknown and are unknowable. To illustrate this questionable expansion of preventative protection measures, he examines criminal procedure, criminal law and sentencing in England and Wales. For example, he asserts that legislation designed to protect against terrorism has eroded privacy rights, allowing the police to stop and search people without reasonable suspicion. The criminal law has been revised to include possession offenses without any requirement to show criminal intent. Further, indeterminate sentencing is being used to hold those presumed to be dangerous until it is thought safe to allow their release. While public protection is the rationale, the net has been cast extremely wide, and large [*714] numbers of prisoners are being held for longer periods of time than was previously the case. Ainsworth also asserts that, while the preventative rationale is not new, governments are attempting for the first time to devise preventative measures that are coercive and avoid human rights safeguards provided in criminal justice proceedings, through civil orders placing restrictions on liberties or activities that breech human rights standards.

Following Ainsworth’s lead on civil preventative orders, Ramsey reviews justifications for civil preventive orders. He asserts that preventative orders are now issued concerning a whole new group of conducts that were previously without civil or criminal restraints. Among these are restraints upon actions that fail to reassure the subjective security needs of others. He suggests that, while such orders have been condemned by liberal criminal law theorists, the practice has not been condemned by mainstream figures, such as politicians, the judiciary or the majority of the public. Ramsey believes that eroding aspects of democratic citizenship in the attempt to eliminate insecurity will prove to be ineffective.

McSherry examines the broadening scope of inchoate crimes to include the offenses of planning and preparation. As a case in point, she analyzes Faheem Khalid Lodhi who was convicted of planning and preparation of a terrorist act in Australia in 2006. She uses the case to show problems in how difficult it is to define physical and fault elements necessary to raise to the level of terrorist planning. She develops questions such as whether the crime of planning can be adequately defined or should even exist at all. She concludes that preparatory offenses have exceeded the previous boundaries involved in inchoate criminal law to include inferences as to the dangerous disposition of the accused, rather than the planned act.

Nolan focuses upon what the social sciences can provide the criminal law. Nolan takes note of the get tough approaches governments are currently utilizing. He believes that these authoritarian approaches focus less on hard empirical data than they do on favorable outcomes. Nolan feels that the social sciences can be used to inform the public debate on criminal justice related policy to offset authoritarian reshaping of the criminal law. Instead, the social sciences can lead the way towards responsible criminal justice policy formation.

Part 4 covers areas less related to domestic criminal law as a vehicle for criminalizing new terrorist offenses. Instead the focus is on other changes in the boundaries of the criminal law. Part 4 focuses upon the scope and justification of sexual offenses and consists of two chapters, “Criminal Law and Private Spaces: Regulating Homosexual Acts in Singapore,” by Kumaralingam Amirthalingam, and “Moral Uncertainties of Rape and Murder: Problems at the Core of Criminal Law Theory,” by Ngaire Naffine.

Amirthalingam writes about the decriminalization of homosexuality which is significantly different from previous works in this book, as the state does not seem to be inexorably edging towards authoritarian control and criminalization in the name of [*715] protections against terrorism. Instead, it appears in this instance, that there is openness to different sexual orientations and a decreased perception of the need to criminalize homosexuality, at least in Singapore.

Naffine focuses upon the core crime of rape. She argues against the notion that rape can be seen as an example of true core crime that becomes the basis for understanding the development of criminal law. Instead of the criminal law developing from a legitimate core, to a questionable broadening of the boundaries of the criminal law (the need for protection from terrorism to preventative detention for example), Naffine uses a feminist approach, suggesting that rape is not actually a core crime and that the notion of core crimes as the foundation for criminal law needs to be examined.

Part 5 focuses upon codification and the liberal promise. It contains two chapters, “Criminal Code in the 21st Centruy: The Paradox of the Liberal Promise,” written by Simon Bronitt and Miriam Gani, and “Faultlines Between Guilt and Punishment in Australia’s Model Code,” by Leader-Elliot. Bronitt and Gani outline the development of Australian common law into a system of codified law that is said to hold the benefits of improved understanding, consistency, certainty, and so on. However, they find that in practice, these improvements are not necessarily easy and are difficult to sustain. Finally, Leader-Elliot follows Bronitt and Gani’s perspective by showing how difficult it was to construct a range of punishments for offenses against persons in the Australian Criminal Code.

This work would be of interest to scholars in the United States in the cross cultural study of law and the development of law. It would also be of interest to those who are interested in the development of criminal law, the theory of criminal law, criminology and the sociology of law. If I were to offer a general criticism, I would speak to what seems to me to be a lack of consistency in the subject matter, or at least the tangential relationship between the first and latter parts of the book. Although the book begins by talking about terrorism and reshaping criminal justice priorities, the later selections significantly depart from this motif, such as fault lines and the codification of Australian criminal law under the Australian Model Criminal Code. I feel that the strongest aspects of the book concern the identification of shifts from liberal perspectives on criminal law to more authoritarian modes and the incompatibility between theory of law and real world applications of theory in light of transnational forms of criminality. In total, the work leaves the reader with plenty of food for thought and significant ideas as to the roots of criminal law and changes in the nature of criminal law.

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