Reconsidering risk algorithms in the penal realm: Performativity, homogenization, and the certainty of threat

Robert Werth,
Senior Lecturer, Department of Sociology
Politics, Law & Social Thought, Rice University

In recent decades, the usage of algorithmic devices for predicting the risk of criminal (re)offending has proliferated across a variety of settings and institutions. For instance, risk assessment instruments are currently used to inform an array of criminal justice practices, including in the areas of pretrial detention, consideration for diversion programs, prison security level, the provision of correctional resources, and case plans for probation and parole. Further, risk instruments – often framed as a form of data-driven, technocratic governance – are almost certain to continue expanding in coming years. In an article published in Social and Legal Studies (Werth, 2018), I explored an understudied element of algorithmic risk technologies: their performative (i.e., world-making) effects. Here, I draw from that article in order to focus on the ways in which attending to the performativity of assessment complicates our understandings – and even suggests some possible reconceptualizations – of risk in the realm of crime control. 

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When Universal Rights Meet a Universal Virus

Richard Cullen

Adjunct Professor, School of Law, University of Western Australia
Visiting Professor, Faculty of Law, Hong Kong University

The concept of universal human rights is a relatively new one.[1]  It is a model for mediating human interaction that is widely regarded in a positive way.  It is also a concept that is deeply sourced in Europe’s past.

Using a Chinese metric, one can credibly describe the long era of European history following the fall of the Western Roman Empire in 476 AD until 1945, as, more often than not, a “Warring States” period.  Before and after that fall, powerful tribes invaded by land from the North.  Vikings later did likewise by sea.  Within much of Europe, numerous kingdoms were recurrently engaged in conflict with one another.  Islamic invasion from the East had also begun by the 8th century leading to frequent confrontational responses, including the Crusades.  Then came the Reformation in the 16th century.   Christianity was split as never before.  Still more savage levels of warfare followed.

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Forms, Standardization and the Production of Justice

Lucy Welsh
Senior Lecturer in Law, School of Law, Politics and Sociology, University of Sussex

I think it is fair to say that neither Matt nor I predicted, when we both began our PGR studies at Kent Law School back in 2011, that we’d end up writing an article together. Matt specialises in issues relating to land law, and is interested in exploring the role objects play in mediating peoples’ relationships to law. I specialise in researching access to justice in the criminal process, and in using empirical research methods to track the impact of policy change. These two areas of expertise don’t obviously lend themselves to collaborative work, but we were keen to see how our seemingly disparate interests could be used to complement and further our respective fields of research.

I had been keen to explore how documents are used to shape criminal process and, by extension, the administration of justice since I noticed how prolifically forms were used in magistrates’ courts while conducting observations for my doctoral research. As a former criminal defence practitioner, I had been used to completing forms in criminal cases, but it was only when I stepped back as an observer that I realised how much they seemed to govern every stage of the process in a criminal case. I spent the equivalent of one month observing magistrates’ courts from the public gallery in a particular region and then interviewed both Crown prosecutors and defence lawyers about magistrates’ court practices. Subsequent to the observations, I included some interview questions about the use of forms. As a result, I ended up with a rich set of raw empirical data about the use of, and attitudes towards, document-based forms in magistrates’ courts.

However, that was something that was only tangentially relevant to my PhD so I was (wisely – thank you Rosemary Hunter and Helen Carr) advised to set the issue aside until I had actually finished what I set out to do. It was a year later that Matt and I had the idea to collaborate. Both of us were excited by the idea that documents, though seemingly benign bureaucratic instruments could actually shape the way that justice is delivered. It was fortunate that we had both read the seminal work of Annelise Riles, and that interest in how documents (somewhat insidiously) shape legal process was growing. So, when we presented our ideas at the SLSA Annual Conference in Bristol in 2018, we were met by a sympathetic audience which gave us plenty of useful feedback.

We quickly realised the need to make clear to audiences that we were not suggesting that documents have agency, but that documents – particularly the way they are structured for guided, limited response – can collectively shape thought processes and behavioural patterns that directly affect, via standardisation, the way that cases are managed. When a particular group is already susceptible to their work being standardised (in this case, the court workgroup, in consequence of funding cuts), the use of forms to further standardise case management presents as simply another streamlining tactic. But it is a tactic that ignores (or chooses to ignore) the process by which justice is administered, making the participants more passive and the system less reactive to the particularities of any given case. It is, of course, possible for those who directly engage with such documents to perform micro acts of resistance, for example, by ignoring sections or rewording a standard question and answer format. However, we were keen to examine how a seemingly inoffensive instrument was actually loaded with assumptions and instructions that directly affect an individual’s experience of the state administration of justice. We concluded that one must not ignore the seemingly mundane procedures through which cases are managed, because they have the potential to quietly transform (and undermine) traditional interpretations of justice.

There are areas in which we would welcome development of these ideas. For example, are people in fact performing micro acts of resistance in the way that they complete documents? To what extent do they feel that what is written in a form is merely performative and can be circumvented at a later stage? To what extent is this simply another example of the neoliberalisation of public services, and what, if anything, can or should be done about that? Ultimately, to us, the paper served as a warning – a warning not to simply accept seemingly nonthreatening practices as necessary, and to examine the use of disciplinary tools (broadly defined) from critical perspectives. We hope also to alert others to the creative possibilities of combining disciplines and perspectives. We enjoyed both being challenged to think about our work in a different way, and hope others enjoy reading it as much as we enjoyed writing it.

This blog follows the publication of L Welsh and M Howard, ‘Standardization and the Production of Justice in Summary Criminal Courts: A Post-Human Analysis’ (2019) 28(6) Social & Legal Studies 774-793

The article is free-to-view for a limited time at this link (correct on date of publication).

About the author

Lucy Welsh has a long-standing interest in all aspects of criminal law and criminal justice. She spent 10 years working as a criminal defence solicitor before moving into academia. Prior to joining Sussex Law School, Lucy previously held posts at Kent Law School, University of Kent. Lucy is currently co-authoring (with Dr Layla Skinns (Sheffield) and Prof Andrew Sanders (Warwick)) the 5th edition of Sanders and Young’s Criminal Justice (OUP). She is also undertaking research commissioned by the Criminal Cases Review Commission and funded by the Economic and Social Research Council on the impact of legal aid cuts on criminal appeal cases. Lucy has a particular interest in analysing policies which facilitate or hinder access to justice, both in terms of legal representation and legal process. Lucy uses empirical research methods to examine the impact of policy on procedures which affect due process.

The story behind ‘Performing Expertise’

Dr Emma Rowden
Senior Lecturer in Architectural History and Theory, Oxford Brookes University

Professor Anne Wallace
Adjunct Professor, La Trobe Law School, La Trobe University

Social & Legal Studies recently published an article that we co-authored, entitled ‘Performing Expertise: The Design of Audiovisual Links and the Construction of the Remote Expert Witness in Court’ (2018). This is the latest in a series of articles we have written, (some with other co-authors, some on our own and others individually: Rowden, Wallace and Goodman-Delahunty, 2011; Rowden et al 2013; Wallace, 2013; Wallace, Roach Anleu and Mack, 2017; Rowden, 2018; Wallace, Roach Anleu and Mack , 2018; Rowden and Wallace 2019b) that draw on qualitative data collected as part of a research project that explored the use of audio-visual links (‘AVL’) in Australian courts.

In this blog, we discuss the purpose of the article, situating it in the broader context of existing research into the use of this technology in courts.  We also reflect on our experience as researchers in the larger project and the nature and evolution of our collaboration as researchers from two different disciplines (law and architecture).

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In the Leviathan’s hands? Rethinking the institutionalisation of restorative justice

Giuseppe Maglione
Lecturer in Criminology, School of Applied Sciences, Edinburgh Napier University

Over the last 30 years, restorative justice’s (RJ) very idea of involving direct stakeholders in dealing with social harms (even when they are expressed as crimes) and their consequences, through consensual dialogue, has appealed cross-nationally to both grass-roots justice reformers and policy-makers. This has led to the increasing incorporation of RJ into policy and legal frameworks (i.e. the institutionalisation of RJ). The recent EU Directive 2012/29 on crime victim’s rights[1] has further contributed towards pushing this process ahead, imposing on EU member states a requirement to legislate on RJ as a ‘victim service’ (article 12). However, such a growth clearly does not automatically equate with an increase of the actual provision of RJ services, which in fact remains very patchy and inconsistent, with a few exceptions (e.g. Belgium). Instead, it raises doubts around the idea, and forces consideration of the effects of turning something which originally was very much conceived of as a bottom-up, decentralised approach to social harms into a penal instrument “imposed” from the top down by policymakers.

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Reflecting on Reviewing the Field of Legal History

Sarah Hamill
Assistant Professor of Law, Trinity College Dublin

When it came to writing a review of the field of legal history, my goal was to write something of interest to sociolegal scholars as well as legal historians.  It was obvious at the outset that my overview would be just that, an overview. The field of legal history is so broad, so jurisdictionally tied, so varied in approaches, time period, and method, that it was clear I could never hope to be fully comprehensive.  Instead, guided by the need to make the article relevant and interesting to sociolegal scholars, I sought to tease out the methods, theories, and concerns of the field. Continue reading

Woolf Wisdom

Richard Cullen

Adjunct Professor, School of Law, University of Western Australia
Visiting Professor, Faculty of Law, Hong Kong University

Hong Kong’s Basic Law is a law of the National People’s Congress (NPC) of the People’s Republic of China (PRC).  It was passed by the NPC in 1990 under the authority conferred on the NPC by Article 31 of the PRC Constitution of 1982.  The Basic Law provides the fundamental, regional legal foundations for governing the Hong Kong Special Administrative Region (HKSAR) within the PRC under the One Country Two Systems (OCTS) formula.[1] Continue reading