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A. A joint legacy of social control

  1. Top of page
  2. A. A joint legacy of social control
  3. B. Foucault
  4. C. The medico-legal borderland
  5. D. Borderland settlements
  6. References

Although scholars in sociology of health and illness and criminology have long been interested in questions of authority, expertise, social control, legitimacy and credibility, the two fields have developed largely independently of one another. Sociologists studying health and illness have sustained an interest in issues of social control ever since Talcott Parsons conceptualised physicians as moral gatekeepers, helping to maintain the integrative function of society. The physicians’ main function consisted of normalising ‘deviant’ illness through the invasive treatment of the body. When physicians assigned the ‘sick role’ to patients, they legitimated a temporally limited state of deviance. In Parsons’ theory, physicians not only treated people to retake their roles in the labour force and other institutions but they verified the legitimacy of illnesses; defining what qualifies as a bona fide reason to abandon temporarily responsibilities in society and take up the ‘sick role’ (Parsons 1951, 1975).

When functionalism lost its attraction for well-known theoretical and historical reasons, the theme of social control re-emerged in sociology of health and illness in more social constructivist perspectives, influenced by labelling theory and a critique of psychiatry as a total institution (Goffman 1961, Scull 1977, Szasz 1961). In a classic article, Irving Zola (1972) argued that medicine should be understood as an institution of social control, ‘nudging aside’ the traditional control institutions of law and religion. Medical social control advances through a process of medicalisation: conditions that were previously not considered to fall under the jurisdiction of health care providers, now are conceptually, interactionally and institutionally taken as illnesses, medical disorders and syndromes (Conrad and Schneider 1980). In these writings, the similarities between the prominence of the health care field and crime (or more generally deviance) in daily life is touched upon but not explored. Zola, for example, notes:

Most analysts have tried to make a distinction between illness and crime on the issue of personal responsibility. The criminal is thought to be responsible and therefore accountable (or punishable) for his (sic) act, while the sick person is not. While the distinction does exist, it seems to be more a quantitative one rather than a qualitative one, with moral judgments but a pinprick below the surface (Zola 1972: 489).

In a review article of the medicalisation literature in 1992, Conrad noted two exceptions to the lack of developing parallels between health and crime: a study by Pastor comparing legal and medical approaches to public drunkenness and another by Melick and associates on the increased admission of males with police records to psychiatric units (Conrad 1992).

Some researchers trained in the health care field have ventured into the study of crime. Epidemiologist Kawachi and associates, for example, applied an ecological approach taken from public health to explain crime. Using data on homicide and other categories of crime they have explored the nature of the association between income distribution, mortality and a measure of social cohesion in the United States. They concluded that the violence associated with income inequality served as an indicator of the psychosocial impact of wider income differences (Wilkinson et al. 1998). More recently they have suggested that the crime rate reflects the quality of life in a community and have reported that crime increases when social buffers that normally exist in middle-class neighborhoods disappear (Kawachi et al. 1999). Catherine Ross (1993) investigated whether the fear of victimisation affects the subjective quality of life, hypothesising that the fear of crime affects the likelihood that people would engage in outdoor physical activity and generate psychological distress. Ross (2000) also found that residents of poor neighbourhoods have higher levels of depression than residents of more advantaged neighbourhoods.

In the study of crime and law enforcement the social control theme has also held centre stage (social control theory is the most frequently discussed and ‘tested’ theory in criminology (Stitt and Giacopassi 1992)). Social control theorists focus on the strategies and techniques leading to conformity and compliance with the rules of society, in light of temptation, peer pressure and inducement that could lead to delinquency and crime. Rather than asking why people become ‘bad’, social control theorists wonder why people remain ‘good’ most of the time. They argue that social and personal controls prevent people from committing crimes: the more committed a person is to conventional activities and attached to others, the less likely that person will violate the rules of society. Travis Hirschi (1969) remains the major social control theorist in criminology. He proposes four principal bonds that help explain the likelihood of conformity: attachment to other people; commitment through investment in education or occupation; involvement in family, school, work and extra-curricular activities; and belief in the norms and laws of the wider society. Hirschi has also provided empirical indicators for his bonds, and the theory has been extensively tested. The current consensus in criminological circles is that social control theory is weakly supported by the available evidence (Agnew 1991, Akers 2000, Greenberg 1999). One author even suggests that social control theory has mainly resonated with criminologists for its conservative ideology (Greenberg 1999).

In the 1980s and 1990s, Hirschi moved away from the classical social control theory to focus on one type of social control. In A General Theory of Crime Gottfredson and co-author Travis Hirschi (1990) claim that crime's attraction lies in its personal, easy and immediate gratification, rendering ‘self-control’ the key to understanding criminal behaviour. Criminals – including white-collar crime perpetrators – lack self-control, and tend to be ‘impulsive, insensitive, physical (as opposed to mental), prone to risk-taking, short-sighted, and non-verbal’ (Gottfredson and Hirschi 1990: 90). Drawing on social psychology and rational choice utilitarianism, Gottfredson and Hirschi argue that the seeds of criminal behaviour are fertilised in childhood: low self-control is established when parents provide weak direct controls for their children. When growing up, these children then lack the will to succeed in social institutions and succumb to the temptation of criminal behaviour. Again, the empirical evidence for this theory is mixed. Researchers have not been able to distinguish a strong relationship between low self-control and white-collar crime, nor specify the age-crime relationship. Yet self-control seems inversely related to general law violations and self-reported delinquency (Akers 2000, Pratt and Cullen 2000). A quantitative meta-analysis of the empirical evidence offers ‘fairly impressive empirical support for the theory’ (Pratt and Cullen 2000: 951), while at the same time also suggesting the importance of other theories such as social learning theory. Social control theory as specified by Hirschi and Gottfredson remains currently the most popular criminological explanation for the pervasive occurrence of criminal behaviour.

While social control theorists see themselves as asking a different kind of question (conformity instead of deviance), they are ultimately concerned with conformity in light of criminality, and not in light of health, occupational achievement, family relationships, education, religion or other possibly related topics. Social control theory remains firmly focused on the dependent variables of conventional criminology. While it would be theoretically possible to expand the insights of social control theory to accounts of medical compliance or to analyse the attraction of unproven, possibly harmful alternative medicine, such developments have not taken place.

Radical criminologists have offered a dissenting view to the liberal and conservative consensus that social control and punishment constitute a legislative enactment of public desires to punish ‘harmful’ and ‘socially undesirable’ behaviour (Cohen 1989). The basic premise of radical criminology is that crime control policy initiatives are actually aimed at social control, keeping down minorities, women and the other dispossessed. The criminal justice system and the welfare state serve the reproduction of a class-based society. Jock Young (1992) identified ‘the square of crime’ consisting of four elements that come together to explain the interplay of crime: victim, offender, state (formal control) and society (informal control). But, as conventional theorists point out, it remains unclear how the elements of the square might interact to generate crime, or even whether the four elements are simple, definitional terms or form an actual explanation (Akers 2000). Drawing from labelling theory and Marxism, critical researchers point out how class bias, sexism and racism are institutionalised in laws and sentencing practices, how the criminal justice system is permeated by large corporations running prisons according to business principles, and how incarceration functions to offset high unemployment rates and policy gaps due to the ‘de-institutionalisation’ of the mental health field (Welch 1998).

A recent development within radical criminology has been the attempt to relate crime to the growth of a competitive market economy. According to Taylor (1999) the transformation of Fordist society, with the virtual collapse in demand for unskilled work and the lack of opportunities for the development of skills within particular crafts, has produced new and heightened forms of marginality and the development of different local ‘economies of crime’, especially in large urban centres. Likewise the growth of transnational markets has created new opportunities for criminal activity by ‘enterprising individuals’ and corporations and encouraged the development of transnational institutions such as international police networks to combat such crimes. Young (1999) advanced a similar argument about the role of the market in his discussion of the development of an exclusive society. He too notes the structural changes to the labour market and the economic exclusion that has followed. But he also acknowledges the growth of social exclusion resulting from the rise of individualism and the unravelling of community, and the relationship between both these forms of exclusion and an increase in crime. Further exclusion then results from attempts to deal with such crime through incarceration and stigmatisation. For Young, increased lawlessness and economic precariousness should be confronted by a politics that embraces the excluded and seeks to devise a new form of community. Ultimately, these writings aim to generate widespread social reform.

B. Foucault

  1. Top of page
  2. A. A joint legacy of social control
  3. B. Foucault
  4. C. The medico-legal borderland
  5. D. Borderland settlements
  6. References

One of the few scholars active both in criminology and health was Michel Foucault. Foucault's main interest was to historicise the way in which the nexus knowledge-power operates in society and has turned human beings into subjects and modern selves. In Madness and Civilization he situated the emergence of the medical professional in terms of its reliance on surveillance and judgment to generate a separate science of the mind (Foucault 1965). In The Birth of the Clinic he analysed how the medical gaze nestled in the tissues of the corpse, turning bodies into subjects of medical knowledge (Foucault 1973). Foucault contrasted this new medical regime with medicine of the 18th century. In the earlier period, medicine was a matter of classifying symptoms, distinguishing one disease from the other, regardless of whether the conditions could actually be located in bodies. Whereas in the ancient regime death was simply the end of illness, in the era of new medical knowledge death became an analytical vantage point from which to study the pathological basis of disease in specialised clinics. The consequence was an objectification of individuals drawn from previously undifferentiated masses and the turn of medical perception towards all aspects of individual life. While such ontological changes were most apparent in medicine, they reflected a turn to individuality in Western culture. Indeed, in his accessible Discipline and Punish Foucault explored how deviants became objectified as individuals in the criminal justice system through a tight power-knowledge nexus (Foucault 1979). Looking at the history of penal punishment, Foucault noticed a qualitative shift in punishment: from the body to the prisoner's mind. While exploring the increasingly repressive structure of incarceration, he discusses the emergence of a new set of disciplinary techniques, new subjects and new roles in criminal justice.

For Foucauldian scholars, those three books reflect Foucault's project to discover the modern subject in history and should be viewed as explorations of the same key themes (Eribon 1992). Paul Rabinow (1984: 8), for example, notes how these works centre on the divisive practices by which people become classified and objectified in modern bureaucracies. Yet when we look at the scholarship undertaken in the name of Foucault in criminology and medical sociology, the unity Foucault intended between them seems to be lost. Not surprisingly, Foucault's legacy is marginal in ‘conventional’ American criminology. As the earlier, brief review of the ‘social control’ theorists suggests, from a Foucauldian perspective grand criminological theorising is implicated in the power-knowledge process that extracts people from the masses and creates a ‘truth’ about crime. In this case it distinguishes ‘criminals’ from the ‘well-bonded-with-good-self-esteem-and-self-control’ through the use of statistical profiling and calculation. Incorporating Foucault would thus necessitate an uncomfortable level of introspection and reflexivity in mainstream criminology. Except for research on penal reform that takes Foucault more as a historical source, Foucauldian theoretical contributions in criminology have largely centred on governmentality, picking up the theme of totalising procedures by which links between the state and individual are formed (Rose 1999). Critical scholars elaborate on Foucault's concern with how rationality and order are achieved from the state downwards, through all aspects of social life, with the creation of ‘docile’ bodies and a justice system employing ever more repressive procedures (Garland 1990). Penal policy, for example, is said to have taken a new turn, with a stronger demarcation between the socially included and excluded. Deviants are no longer just condemned but increasingly held responsible for their own fate. According to Rose (2000), there are two circuits of exclusion for managing those who fail to comply. Those who present a lower risk may be offered individualised treatment or control, with the aim of achieving ethical reconstruction through surveillance. Those for whom ‘re-insertion’ is unrealistic, or who pose too great a threat, are quarantined in order to protect society.

In sociology of health and illness, in contrast, Foucault ranks much more prominently (for an excellent review see Armstrong 1997). Foucault's inspiration has permitted sociologists to understand the forms of power assumed by medical practices, reintroducing a more critical analysis to the study of health care. Sociologists have seized upon Foucault's writings on the medical gaze and creation of patient-bodies (Heaton 1999, Prior 1989), the spatialisation of disease (Armstrong 1993), surveillance (Nettleton 1992), and the pervasiveness of public health (Brown 2000, Bunton 1992, Petersen 1997). Of note are Bryan Turner's attempts to re-embody sociology along Foucauldian lines. According to Turner (1984), Foucault was interested in the production, regulation and representation of bodies within a context of disciplinary surveillance. Several studies elaborate on Foucault's notion of bio-power, a new power relationship aimed at fostering the life of the population and of individual bodies (Gastaldo 1997, Shim 2000). Foucault conceptualised bio-power as a displacement of judicial categories by scientific ones such as species, population and fertility. The prominence of Foucault in medicine rather than criminology might thus also be partly explained by this dislocation: the fact that public health symbolised the manifestation of new power replacing the older repressive power of the justice system. Yet even medical sociologists have not followed Foucault's lead and linked medical surveillance to surveillance in other realms.

Foucault's oeuvres highlight the lost opportunity when topics are segmented into different sub-disciplines with minimal dialogue. The result is a conceptual impoverishment and a disregard for the multiple intersections between criminal justice and medicine. For Foucault, the common denominator in the penal system and in health care is a pervasive configuration of power and knowledge that divides people up through continuous surveillance and discipline (McCallum 1997). Foucault explains the conjuncture with an example of how mental health and criminology feed into each other leading to a ‘psychiatrisation of criminal danger’:

The more psychologically determined an act is found to be, the more its author can be considered legally responsible. The more the act is, so to speak, gratuitous and undetermined, the more it will tend to be excused. A paradox, then: the legal freedom of a subject is proven by the fact that his (sic) act is seen to be necessary, determined; his lack of responsibility proven by the fact that his act is seen to be unnecessary (Foucault quoted in McCallum 1997: 54).

C. The medico-legal borderland

  1. Top of page
  2. A. A joint legacy of social control
  3. B. Foucault
  4. C. The medico-legal borderland
  5. D. Borderland settlements
  6. References

The deep convergence of crime and health care is striking. Crimes are established along a psychiatric and psychological continuum, generating an endless proliferation of psycho-medical conditions and categories of persons. The severity of the criminal act has become dependent on the sanity of the individual as postulated by psychiatrists whose concepts and measurement techniques often lack the scientific reliability expected in court. Contemporary jurisprudence and health care intersect at a densely populated borderland and it is this overlooked borderland that forms the topic of the current special issue.

The borderland between crime and health care is populated and guarded by a number of professionals engaging in processes that contain both the criminalisation of contested medical interventions and the medicalisation of criminal danger. The medico-legal borderland has clinics, prisons, medical boards, courts, occupational and public health offices, regulatory government agencies, crisis intervention centres and street policing. The conjunction of legal and medical concerns thus occurs in specialised settings, such as the morgue of the forensic pathologist, where every action is defined in terms of a hybrid of legal and medical principles, or in places typically associated either with medicine or law enforcement such as jails or hospitals. What is typical of all these sites is that alliances are created that link medical knowledge with knowledge about criminal deviance for the purpose of social control.

As Gloria Anzaldua (1987) poetically explores in her account of inhabiting the border between a Mexican, Anglo- and native-American identity, what is at stake in the borderland is the issue of loyalty: when pressed to make a choice, whose side are you on? This question assumes a purity of two cultures, medicine and law enforcement, each with a different purpose, the eradication of disease and crime; and a license to intervene on the basis of different principles, treatment and protection from danger. The borderland might then become a site of struggle where two parties vie for hegemony in an attempt to redraw the borders to their advantage. The struggle might involve attempts to influence, occupy, colonise, or annihilate and require outside intervention (Abbott 1988, Light 2000). In the case of the medico-legal borderland, such a struggle might lead to the criminalisation of actions that were previously considered medical, or the medicalisation of issues under legal jurisdiction. Conflicts might result in the subordination of entire occupational groups, the creation of new categories of patients or offenders (‘kind making’ in Ian Hacking's vocabulary (Hacking 1986)), or the appropriation of procedures and terminologies. The question that emerges when medicine takes over traditionally legal domains or vice versa is how the resulting social control arrangements satisfy both the inhabitants of the borderland and those at the different centres of expertise.

Leigh Star and Donna Haraway noted that borderlands also might require a tolerance for ambiguity, for that which is not typical on either side of the frontier (Haraway 1991, Star 1991). Instead of a contentious struggle between interests, there might be a more gradual mixing of blood, land and resources. Inhabiting the borderland might involve undermining established dualisms, morphing into new kinds of social control that cannot be traced back to traditional concerns. The intersection of crime and health might thus lead to a profound questioning of values, norms and procedures that are taken for granted in the hinterland. The resulting social control contains elements from the health care field and the criminal-legal realm but cannot be reduced to either one. Or it reflects a reaction against both areas and involves a new configuration. Such third-way solutions might occur more or less spontaneously or be orchestrated from afar, but they remain notoriously precarious. The possibility that the alternative ends up reverting back to the interests of one side of the border remains distinct.

The contributors to this special issue follow Foucault's lead (but not necessarily his theories) and provide the foundations for a new sociological outpost in the borderland between health and crime. On the most general level the papers in this volume report a reconceptualisation of issues that are often taken for granted in the centres of medicine and criminology. The role of health care provider becomes contested when treating people means extracting information that can be used against ‘patients’ in a court of law, or when patients inflict violence on health care providers instead of consenting to treatment in the subordinate ‘sick role’. Similarly, what is the rehabilitative potential of a prison if offenders are diagnosed with severe mental illnesses? Health care workers practicing in a legal context are not simply faced with a new set of priorities; instead, the intersection of medicine and criminal law profoundly affects every aspect of identity and work. Similar redefinitions occur on a macro level when government agencies actively intervene in the making of knowledge to protect a population from a perceived violent threat or when popular media normalise the mentally ill as prone to violence. Even staple sociological topics such as ethnic identities receive an unexpected twist when they are incorporated in legal defence strategies.

In the borderland, often overlooked tools of health care such as drugs like methadone, or even medical records, gain importance. Marc Berg has argued that records do not merely mirror medical practice but play an active, constitutive role in current medical work (Berg 1996, Berg and Bowker 1997). The record does not simply ‘copy’ the staff's work but actively shapes, in a non-deterministic way, the medical encounter, forming the organisational memory of the work performed. When the same medical records are read in courts or become part of legal disputes, the legal use is not a mere addition of a new function to the record. Rather, the record makes certain criminological actions and conclusions possible and thus, in its own way, shapes the content of the medical-legal hybrid. For example, Gale Miller (1998) has noted the extent to which the routine record keeping of staff members in social work settings anticipated the possible escalation of staff-client disagreements into formal disputes. The record's prospective orientation in legal adjudication contrasted with the short-term relational demands of most client-staff relations.

Documenting medical conditions changes meaning when the records are treated as legal documents. But to what end? The ultimate question haunting the medico-legal borderland is cui bono, who benefits (Star 1991)? The common warrant for health care interventions is that they benefit the health of an individual or community, while the criminal justice system has a mandate to protect the public. In the borderlands, these justifications often clash, provoking fascinating debates about the rights of autonomous individuals vs. the benefits of a community. Should victims of murder be autopsied as part of a criminal investigation or should the organs of the usually young, healthy victim be removed for organ transplantation purposes? Because borderlands do not necessarily abide by the norms and values of either intersecting realm, innovative, third-way solutions are often sought and achieved. The question of cui bono also raises an important issue that has been left largely unaddressed in the many medicalisation studies. Medical sociologists have detailed the increased medicalisation of all areas of life (Conrad 1992), but what do we gain or lose through such medicalisation? Is the medicalisation of homosexuality ‘better’ than its criminalisation, or only a more insidious way of controlling it? What do we make of patient groups who actively seek out and submit to medicalisation of their conditions (Cussins 1998)? While we do not have an easy answer for the politics of social control, the borderland between crime and health is a good place to observe those politics in action because the meeting of the two realms inevitably generates friction and misalignments, often requiring translations in public ways.

D. Borderland settlements

  1. Top of page
  2. A. A joint legacy of social control
  3. B. Foucault
  4. C. The medico-legal borderland
  5. D. Borderland settlements
  6. References

Care providers as experts and victims of crime

The role of key informant for law enforcement positions health care providers as experts in knowledge-based societies while exposing them to potential violence (Giddens 1994, Knorr-Cetina 1999). This tension evokes questions about the nature of health care in the medico-legal borderland. Several states in the United States have ‘mandatory reporting’ legislation, requiring all health care providers to alert legal authorities when they encounter patients indicating or showing signs of domestic violence, child abuse, or elderly abuse. Besides the obvious privacy issues, such mandatory reporting raises a list of ambiguities, most importantly, how does one determine that abuse or maltreatment have actually taken place, and how does one overcome the resistance of victims and of relatives who might be the perpetrators (Finn and Stalans 1995, Lahoti et al. 2001). Such ambiguities are further exacerbated in the area of illegal drugs. Not only is illegal drug use associated with an increase in a variety of crimes and severe health problems, but the routine consumption of illegal drugs is sometimes considered a medical addiction falling under the purview of health care counsellors, sometimes a form of criminal behaviour requiring a ‘stiff’ prison sentence and sometimes both.

Emilie Gomart's contribution to this special issue shows that care providers can develop a third approach. Since the 1970s, policy makers in France have regarded people addicted to drugs as patients and as delinquents; they have offered them treatment under a medicalised paradigm and locked them up in prisons. In the 1990s, however, a group of critics charged that the medical and criminal approach rested on the same fallacy: the addict was viewed as a free, autonomous subject who was coerced by the drugs to behave in destructive ways. Therefore a state of complete abstinence was the only acceptable policy approach to drug addiction and a condition for treatment. Advocates of criminal and medical policies differed on whether abstinence could best be achieved in prison or in treatment programmes. The problem was, however, that the ‘free subjects under influence’ avoided treatment centres, thus undermining the efficacy of drug treatment programmes, and a prison sentence did not result in sustained abstinence. The critics offered an alternative based on methadone treatment: instead of trying to eradicate drug addiction, the addictive character of methadone could be used to stabilise drug dependency.

Gomart argues that methadone substitution constituted a criticism of the liberal definition of human agency. Based on extensive ethnographic observations in a clinic in a Parisian suburb and drawing on actor network theory, she details how the experimental clinic went out of its way to find users, and tailored its treatment, after a sophisticated analysis of the relationship of the user, to the drug used. Clinic staff set goals with the users and negotiated doses of different drugs with them, taking the addictive agency of the drug into consideration in order to induce and seduce the users into substitution. The clinic's approach rested on a programme of ‘generous constraints’. Rather than viewing drug users as autonomous beings isolated by addiction, the staff of the experimental clinic regarded them as people acting under various constraints. Cunningly deploying these constraints offered the staff and users an opportunity to build attachments and new relationships. Gomart concludes, ‘By varying constraints, staff and patients attempt a daring redefinition of the subject. Not as autonomous and free, but as an ‘attachment’, an entity emergent in constraining relations’.

Some professionals, such as forensic pathologists and police surgeons (Savage et al. 1997), have been working as experts for such a long time in the borderland between crime and medicine that their position seems stable. But even they might be forced to articulate their priorities when new parties question their loyalties. The forensic pathologists’ main task is to make medico-legal determinations in suspicious and sudden deaths. In the US, state-appointed forensic pathologists have legal jurisdiction over corpses to determine the identity of the deceased and the cause and manner of death. While forensic pathologists have been trained in medical schools, certified by medical authorities, and employ medical procedures, their primary constituency consists of law enforcement and the legal profession. In recent decades, the equilibrium between medicine and law enforcement in the forensic realm has been disturbed by a group of health care professionals with alternative claims on the corpse. In their quest for more organs and tissues, organ-procurement organisations have been questioning the jurisdiction of forensic pathologists to autopsy corpses that also contain transplantable organs (particularly homicide and child abuse cases). Analysing this conflict from the standpoint of the professionalisation literature, the paper by Stefan Timmermans discusses how the organ-procurement organisations have redefined their relationship with forensic experts. Procurement organisations have attempted to alter legislation, standardise collaborations with forensic pathologists and offer financial incentives. Timmermans argues that each of these strategies redefines the relationship between organ-procurement organisations and death investigators from collaborative to conflictual jurisdictional relationships, and affects forensic pathologists’ abilities to investigate suspicious deaths.

Work-related violence against doctors also provides a particularly interesting context for exploring the relationship between medicalisation and criminalisation as it involves focusing on doctors as victims of criminal behaviour by those who have ostensibly sought their help for a medical problem. How do doctors interpret such deviant behaviour and how do they manage it? Are these patients seen as ‘ill’, as ‘criminals’ or as a new category altogether? And do doctors continue to treat them as patients or concentrate instead on minimising risk and trying to protect themselves from harm? Of equal interest is how these health care professionals’ responses to violence are framed by state policy on work-related violence. Does such a policy advocate a more punitive approach than was the case in the past, in line with the new turn in penal policy identified by criminologists (e.g.Garland and Sparks 2000)? In other words, does it encourage doctors to see the individualised, medicalised management of perpetrators of violence as no longer appropriate and to be replaced by a ‘zero tolerance’ approach, with perpetrators being reported to the police and forfeiting their right to treatment from their existing doctor? If the answer were ‘yes’ then it would seem that the boundary between medical and penal jurisdiction has been redrawn.

The paper by Elston et al. addresses these questions. Drawing on empirical evidence of the responses of British general practitioners to incidents of violence and those who perpetrate these acts, and an analysis of state policy as regards work-related violence against health care workers, it argues that the policy frame is consistent with the claims of criminologists that there has been a new turn in penal policy away from the needs of offenders. The doctors’ accounts, on the other hand, suggest that they are not ‘zero tolerant’ in responding to attacks, but nor are they medical imperialists seeking to include all perpetrators within their professional jurisdiction. Instead they make contextualised judgments that are not fully captured by medical sociologists’ tendency to dichotomise illness and crime.

Invoking and Controlling ‘Madness’

A similar theme of freedom and coercion, treatment and imprisonment appears in the four papers on mental health in this special issue. For generations, the mentally ill were primarily patients, secluded in mental hospitals. But in the aftermath of a widespread critique of the conditions of these hospitals, and because of high cost, many of them closed, leaving their patients to be cared for in local community facilities and through medication. Yet, the mentally ill often ended up on the streets, in hospital Accident and Emergency departments and in jail. These four papers explore and question the explicit links made between mental health and criminal behaviour in policy and legal circles.

Sarah Armstrong offers an analysis of the juvenile justice system in Massachusetts after de-institutionalisation. In the late 1960s, the director of the Massachusetts department of youth services decided to shut down all juvenile delinquency state facilities in favour of a regional, privatised and community-based system of service providers. The state facilities’ close resemblance to ‘total institutions’ (Goffman 1961) caused failure in their dual mission of rehabilitating the offenders and housing youths safely. Armstrong's data show that in the mid-1980s most of the new service providers came from the mental health field. She argues that the predominance of mental health providers in the realm of juvenile justice can be explained by the scientific credibility of mental health knowledge. The widespread medicalisation of deviant behaviour by psychiatrists offers the juvenile justice system a means to diagnose criminal behaviour as conduct disorders (e.g. oppositional defiant disorder) and offer treatment possibilities (e.g. cognitive behaviour therapy). Armstrong argues that the incorporation of mental health language and techniques does not constitute a retreat from rehabilitative aims as asserted by new penology theoreticians (the actuarial approach), but allows the justice system simultaneously to achieve retributive and rehabilitative aims and redefine measures of success. Success in criminal justice infused by mental health discourse and procedures is a matter of reducing risks rather than eliminating crime.

The next contribution discusses the role of the Canadian print media in the conflation of illness and criminality. Riley Olstead reports how the media fuel negative views about mental illness through linking it to ideas about violence and criminality. Based on a discursive and content analysis of mental health media depictions, Olstead describes a submerged ideological polarisation that opposes those with and without mental illnesses. The media representations achieve a view of the mentally ill as medically irrational, legally responsible and consequently socially immoral. Taken in concert, it is understood that ‘They’ are a danger to ‘Us’. The media further portray the mentally ill as dependent and irresponsible, and their illness as something to be overcome through cultivating the ‘right attitude’. Finally, Olstead draws attention to a class bias in the depictions. She argues that the almost taken-for-granted equation of mental illness with criminality resonates powerfully with politicians and the public alike, a claim taken up by Nick Manning in the next paper.

How does a society deal with people who might be dangerous but have not committed a crime? Leaving them until an offence has been committed puts the public at risk, and incarcerating them indefinitely violates human rights treaties. Nick Manning discusses the UK government's solution to this dilemma between public and individual rights, a solution very different from the one described by Gomart but reminiscent of Rose's analysis of quarantining (Rose 2000). He notes that the perceived rise in crime on which politicians acted was not corrobated by crime statistics: violent crime had actually gone down, but – as Olstead suggested – the perception persisted that crimes committed by the mentally ill had increased. To tackle the issue of violent crime the government took an active role in the establishment of a new sub-category of personality disorder, the ‘dangerous and severe personality disorder’. Personality disorders are notoriously difficult to detect since they manifest themselves through behaviours rather than through biological and psychological signs. Forensic psychiatrists and other mental health experts agreed that these disorders are marred by uncertainties in diagnosis, assessment, measurement and treatment. The government took the initiative to develop an evidence base for the disorder and to develop a new treatment service in prisons and special hospitals. The government relied on the notion of ‘potential risk’ to enroll people in treatment facilities, obtaining a de facto incarceration of potential offenders. Manning compares the actor network approach from sociology of science and technology with the policy network approach of policy studies to explore the government's role in justifying detention for people at risk as offenders.

Finally, Sita Reddy's paper discusses the emergence of a new legal defence strategy modelled on established mental health categories. The ‘culture defence strategy’ is used by defendants in US courts to diminish responsibility for the crimes they have been accused of committing. This strategy has been employed, for example, by a Japanese woman accused of killing her children and by cuckolded Hmong and Chinese husbands. The controversial defence strategy employs ‘culture’ as a significant heuristic category in the criminal court, articulating an individualised perspective of immigrant culture that determined the mindset of the defendant when the ‘crime’ took place. In the context of the defence strategy, some cultures become mitigating pathological conditions, in the same way that an ‘insanity’ defence is used to diminish legal charges. Reddy argues that the culture defence strategy institutionalises a hallmark of late-modern reflexivity, the therapeutic ethic, in the criminal justice system. The defence rests on an autonomous self as the centre of moral authority; it favours the expression of feelings rather than reason or logic, an influx of psychiatric and anthropological expert testimony, a tendency to pathologise behaviour and the notion that the defendants are victims of immigrant cultural values. The criminal court thus represents a setting where connections between mental illnesses and cultural differences are fostered and re-conceptualised.

Overall, the papers in this special issue thus reveal some of the multiple interconnections between criminology and medical sociology and the need for dialogue between them. They highlight the role of professionals in engaging in processes that involve the criminalisation of contested medical interventions, the medicalisation of criminal danger, and the generation of altogether new forms of social control. In so doing they provide the basis for questioning values, norms and procedures that are frequently taken for granted in the centres of health care and law enforcement, and place firmly on the agenda the fundamental question of who benefits when the health care and criminal-legal realms interact.

References

  1. Top of page
  2. A. A joint legacy of social control
  3. B. Foucault
  4. C. The medico-legal borderland
  5. D. Borderland settlements
  6. References
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