Barry Vaughan on ‘Automated Justice’

Irish criminologists might be interested in a paper by the great Australian criminologist Pat O’Malley on what he calls simulated justice (see http://surveillanceandeveryday.files.wordpress.com/2011/06/pat-omalley-text.pdf ). This is a process whereby justice is achieved in a virtual reality with very real effects. The archetypal example is the traffic fine which is increasingly operated through an automated process with very little individual intervention. Such a system creates what O’Malley calls ‘dividuals’, anonymous yet specific license holders such as the ‘driver’ or ‘owner’, whose behavior is moderated through a monetary sanction.

The purpose is not to ‘discipline individuals’ but to modulate flows of valued objects such as traffic. In an effort to make the whole system as efficient as possible, to ‘make it flow’, strict liability offences are created and people are actively discouraged from appealing , having potentially to pay more money for a right to be heard as an individual in court. This is what makes possible virtual closure where apprehension, sentencing and sanctioning are all dealt with in the domain of the code in an automated fashion.

If people continue to offend, the capacity to circulate legitimately through something like a license may be removed. Again, it is the ‘licensed dividual’ — the driver or owner — rather than the individual who is being sanctioned. Ideology has not guided this depersonalized and remotely administered form of justice; it has been created because disciplinary intervention to transform the ‘character’ of individuals is simply unworkable before the volume facing it.

The significance of the paper is, I believe, threefold.

First because simulated justice dwarfs in terms of scale the sorts of judicial justice that criminologists regularly examine yet remains invisible to the profession.

 Second, what is at stake in this form of justice is not necessarily inviolable rights with which criminologists and lawyers are comfortable discussing but what O’Malley calls ‘purchased freedoms’ that exist ‘well inside the perimeter of rights’. Yet restriction or removal of these freedoms may well have a serious consequences upon people’s autonomy and quality of life.

Third, O’ Malley analyses what might be called high-volume, mass-produced offences. I wonder whether it is possible to apply some of his ideas to criminality at the other end of the scale, committed by what would be known as ‘organized crime’.  Consider that the Criminal Assets Bureau deals with this kind of criminality overwhelmingly through taxation, which must operate through some of the modalities that O’Malley identifies: lack of concern with disciplinary interventions, identification of people as ‘dividuals’ in the form of house owner or account-holder, and placing the burden of proof onto the accused. One of the questions must be how effective this kind of intervention is: do criminals pay up and continue to go about their illegal business or are they convinced to ‘go straight’? In O’Malley’s account, recalcitrant individuals have their license removed but we know practically nothing about the responses of those targeted by CAB.

If O’Malley is accurate in his diagnosis of contemporary trends, then they call into question many of the assumptions governing criminological investigation. Previously, I have speculated that Irish criminology could be considered as a kind of ‘Maginot Line’, fixated on threats to individual rights posed by the physical intervention of the criminal justice system, when the more momentous dangers could be emerging outside of the discipline’s perspective.  




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