Against Prediction: Profiling, Policing, and Punishing in An Actuarial Age

By Bernard E. Harcourt | Go to book overview

PART II
The Critique of Actuarial Methods

Many critics of the actuarial today associate the rise of statistical models with a loss of individualization—with a movement toward generalization and away from what Frederick Schauer calls the “primacy of the particular.”1These commentators locate the actuarial in opposition to individualism. Legal scholar Albert Alschuler, for example, laments the increased use of aggregation in criminal sentencing precisely because it undermines the traditional focus on the individual. In a 1991 article subtitled A Plea for Less Aggregation, Alschuler writes, “Increased aggregation seems characteristic of current legal and social thought, and now seems to threaten traditional concepts of individual worth and entitlement.”2Alschuler places the rise of aggregation in criminal law alongside the emergence of group rights as a new strategy for social reform. Aggregation has led to a new group-based penology: “Judges determine the scope of legal rules, not by examining the circumstances of individual cases, but by speculating about the customary behavior of large groups,” Alschuler explains. “We seem increasingly indifferent to individual cases and small numbers.”3

These criticisms reflect in part the original contribution of Malcolm Feeley and Jonathan Simon, who coined the phrase “New Penology” in the early 1990s.4The New Penology referred precisely to a mode of discourse and to technologies for the management of dangerous persons that replaced the earlier language of individual moral culpability, clinical diagnoses, and treatment interventions. The New Penology represented, in their words, an “actuarial language of probabilistic calculations and statistical distributions applied to populations” that “seeks to regulate levels of deviance, not intervene or respond to individualdeviants or social malformations.”5

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