One of the most prevalent themes taking place in English speaking penal systems at the present time is the activation (or reactivation as the case may be) of special measures to provide some form of indefinite detention for those thought to be "dangerous".  In penology this term has a specific meaning, as it always has since the first introduction of such measures in these countries about a century ago.   That is to say, it is usually taken to refer to that group of offenders whose propensity to repeat their crimes puts the well-being of the rest of the community at risk;  and such offenders also tend to be regarded as "neither sane nor insane" (Kozol 1972) -  that is, they are likely to have a problematic but legally unclassifiable mental state.

It is this combination of repeated criminality and undeterminable mental state that has prompted the introduction of special measures of control for this group.   These have usually taken the form of empowering the court to impose some form of indefinite detention, or some form of additional detention over and above the usual prison term for the particular offence, and which can frequently overlap with civil powers of indefinite detention.   These measures are usually known as preventive detention, but other examples today would include the sexual predator laws in the United States and elsewhere, and the Three Strikes laws in that country and derivatives to be found elsewhere.

Understandably, the court's ability to move beyond the usual sentencing matrix in these cases has provoked considerable debate about the ethics of these measures: to what extent is it legitimate to punish an offender for the kind of person they are judged to be, in addition to the crimes they have committed;  and to what extent is it permissible in Western societies to detain an offender on the assumption that they might commit a crime in the future?   However, it is not so much the ethical issues associated with these measures that is of interest to me, but instead the sociological issue of why we should be seeing resurgence of these measures at the present time across most English based jurisdictions:  what we certainly seem to be seeing at present, is, to use a phrase presciently coined by Tony Bottoms (1977) is a "renaissance of dangerousness".  What he was referring to was the way in which the first dangerousness laws in the early part of this century remained very much on the margins of modern penal arrangements.   What is clear is that right across these societies, these measures came to be rarely used even perhaps the most notorious of them, the United States sexual psychopath laws from the late 1930s to the mid 1950s were rarely used.   Why should this have been so?

There would seem to be a number of reasons for this, one of the most significant being judicial opposition.   There is no doubt that historically judges have always been very suspicious of these powers of indefinite detention, precisely because they seemed to contravene some of the defining characteristics of modern punishment:  characteristics of certainty and proportionality, for example.   Indeed, it was only in totalitarian societies (or other non-modern social formations) that such powers of indefinite detention became central penal features.   Certainly, in English-based societies, precisely because such powers effectively suspend taken-for-granted features of their  penal process, they were always intended to be exceptional powers, to be used sparingly if at all.   In the United States in particular, such powers have been, and still are, subject to regular legal challenge on the basis of their constitutionality.   Not only this, but the heritage of the dangerousness powers their association with totalitarian measures of oppression helped to taint them in the eyes of most of these jurisdictions in the post 1945 era and made them come to be regarded as unwelcome ñ and unnecessary appendages to the penal system.

At the same time, it also seems to have been the case that there was little popular support for these measures strange though it might seem today.   There had been significant antipathy to these new powers from the general public from the late 19th century when they were fist suggested, to at least the 1930s, as was acknowledged in the English Report of the Committee on Sexual Offences against Young People (1925: 61):
"we consider that special action is called for in cases of repeated sexual offences [against children] ... we are aware that the public mind is distrustful of any kind of indeterminate sentence, but we believe that a period of prolonged detention in a special institution might occasionally effect a cure.   In any case it would protect the public more effectively than many short terms of imprisonment."

Why was it, though, that public opinion at this time could seem so hostile to measures which, today, have come to have an entrenched position in modern penal systems?   The encroachments on the conduct of everyday life that such powers of punishment and surveillance allowed the state to make gave it a role that most of its citizens would take time to adjust to: it might well have been the case that by assuming such powers the state was prepared to act on behalf of its citizens to offer them a right to life;  but at the same time the idea of a benevolent state still seemed novel to significant elements of the social body, as if such benevolence was a front to more sinister and coercive modes of control intimated by the dangerousness laws.   Against this, there was till a residue of public sympathy for those who found themselves on the wrong side of the law particularly when they might be subject to what were thought to be excessive powers of detention.  What we thus find during the 1950s and 1960s is a further paring back of these powers, to the point where they were hardly used at all;  or remained only for use in an increasingly prescribed arena those who committed sexual crime against children, for example.

And yet what then happens in the post 1970s period, is a significant escalation of these measures, after some decades of quiescence.   These special powers of punishment came to include those who committed sexual/violent attacks on women, but over the last decade or so they have been further broadened to include a much wider variety of persistent criminality, including the type of petty offences against property which, in the mid 1970s, English judges were saying should not be dealt with by way of custodial sentence.   Furthermore, to ensure that their intentions are now more effectively put into practice in this area, many legislatures are endeavouring  to curb the discretionary powers of judges by making these provisions mandatory for certain groups of offenders, as for example with "Three Strikes":  and thus rather than remaining at the margins of modern penal systems, these provisions are assuming a much more central role in penal policy today.

Why should this be so?   To answer this question, we have to look first, at the way in which the homogeneous cultrual framework of postwar welfare society was beginning to break down during the 1970s. The economic change that made personal possessions more readily available and replaceable were accompanied by forms of social change that were beginning to completely revitalize and reorganize the conduct of everyday life.   New opportunities for women in particular became available as normative social horizons for them were extended beyond domesticity and into a more pluralistic world of career opportunities and increased public visibility.   These new found freedoms and opportunities thereby bring with them additional risks and insecurities.   A growing sense of uncertainty and insecurity is brought home by the fragmentation of previously embedded cultural practices: if domesticity, for example, had been a form of entrapment for so many women in welfare society, at least the world then had a certainty and permanence to it.    If very many more women were now given the opportunity to move beyond the domestic realm in post-1970s society, there was little by way of the traditional support structures to be found in the private, domestic world that had hitherto been their most expected location to structure and guide these new possibilities.   Entry into the public domain came with a price - increased vulnerability and anxiety.

Second, crime fears in general are fuelled ,much more rapidly today by modern communications technology:  as Tony Giddens (1990) has pointed out, such risks in this way become both globalized and localized helping to erode those last vestiges of public sympathy for offenders that I referred to earlier and instead creating a new mood of public intolerance and suspicion.   It is perhaps these types of anxieties that have revitalized the perceived necessity for the presence of the dangerousness laws today. .   The risks that children face have been rearticulated and are now thought to be embodied in the figure of today's 'sexual predator', as if such monsters may surreptitiously move into our neighbourhoods, and against such eventuality the entire community must be mobilized.   Equally, women not only become the new targets of dangerous offenders but also, in line with their enhanced social status and visibility begin to claim the right to protection from such attacks.   The incalculable and irreparable nature of the risks that they now seem to face and the very marginality of such powers of protection that the laws have always represented leads to members of the public - but particularly women - being exhorted to assume increasing responsibility for self-management of such risks:  "police want people to create strongrooms in their houses to barricade themselves away from intruders ... 'for women living alone or people not in close proximity to their neighbours, it is often safer to barricade yourself in a room than venture outside where they may be other offenders" (The Dominion 4 May 1998).

More generally, crime and perceived risks of being a crime victim no longer seem manageable within the established penal arrangements.   By the same token, the increasing exhortation from the state to its citizens that they should 'take care of themselves' creates, paradoxically, a demand for more protection from the state, as the more alarming and risky the world seems to become.   The risks posed by dangerous offenders not only seem to grow but appear to be beyond the capabilities of the modern state to manage.

In these respects, the increasing reliance on dangerousness laws of the United States Three Strikes nature illustrate the way in which dangerousness provisions have become a much more general form of penal power;  and of the way in which through their mandatory nature, the erstwhile boundaries of modern penal arrangements are now being breached.   From being largely confined to those who would put at risk the well-being of women and children the concept now comes to have the potential to remove an increasingly broad range of the socially undesirable.   To achieve this, it seems that democratic states increasingly have to have recourse to penal powers of totalitarian and other non-modern social formations.   If we are now prepared to ignore the political and cultural stigma that these powers bear as a result of their ancestry in Nazi Germany and Soviet Russia, then we are also able to live with the consequences of so doing:  massive increases in the prison populations of these societies (cf Christie 1993).  What lies behind them, surely, is the emergence of a new culture of intolerance, a cheapness and expendability of human life.   Ironically, these measures, with their totalitarian parallels are justified on the grounds that they are designed to protect personal freedom and individual rights, even if these new dangerousness laws themselves seem to be at odds with such values.

References

Bottoms, A.E. (1977), "Reflections on the renaissance of dangerousness", Howard Journal of Penology and Crime Prevention 16:70-96

Christie, N. (1993), Crime Control as Industry, London:  Routledge

Giddens, A. (1990), The Consequences of Modernity, Cambridge:  Polity Press

Kozol, H. (1972), "The diagnosis and treatment of dangerousness", Crime and Delinquency 18:371-392

Report of the Committee on Sexual Offences against Young Children (1925), London:HMSO.