Diana Wendy Fitzgibbon (2004) Pre-emptive Criminalisation: Risk Control and Alternative Futures. (Issues in Community and Criminal Justice. Monograph 4) London: National Association of Probation Officers

This interesting short monograph develops the notion of 'pre-emptive criminalisation' by which the author means the increasingly widespread imposition of forms of constraint and deprivation of liberty normally reserved for those convicted of criminal acts on individuals who are regarded as risks to the public or likely to commit criminal offences but have not yet done so.

While well known examples such as Anti-Social Behaviour Orders are mentioned, the main body of the monograph focuses on the treatment of the mentally ill. Wendy Fitzgibbon provides a really interesting history showing the changes, since the 1950s, in official ideology and discourse concerning mental illness and criminality. She does this by comparing three crucial White Papers which defined the orientations and practices of medical authorities and social services towards the mentally ill and led to important legislation in this area.

She begins with the 1957 Report of Royal Commission Relating to Mental illness and Mental Deficiency and shows how it embodied the traditional welfare state orientations of rehabilitation and what would today be called 'social inclusion'. She notes that the White Paper of 1981 maintained the emphasis on rehabilitation and reintegration of the mentally ill but stressed the role of 'community care' in this process.

The really big shift towards pre-emptive criminalisation comes, she argues, with the 2000 White Paper entitled Reforming the Mental Health Act which has informed recent legislation. Here there is a decisive shift in emphasis away from rehabilitation and reintegration of the mentally ill into society and towards the concerns of risk management and protecting the public from potential harm by mentally ill offenders. This orientation provides the context in which, through widening definitions of mental illness, and the inflation of risk estimates concerning those with mental disabilities, the constraints imposed upon the mentally ill constitute their de facto criminalisation. They are treated increasingly as if they are dangerous criminals quite irrespective of whether they have committed any offences. 

This monograph was reviewed by Gwen Robinson in the March 2006 issue of the Probation Journal (vol 53:1). She wrote: 

Peter Linebaugh, 2003 The London Hanged: Crime and Civil Society in the Eighteenth Century (second edition). London: Verso books.

(This review first appeared in The Chartist) 

Verso have done a great service by republishing Peter Linebaugh's magnificent study, first published in 1991, of the men and women of eighteenth century London hanged on the gallows at Tyburn. Linebaugh set out, as he put it, to "explore the relationship between the organised death of living labour (capital punishment) and the oppression of the living by dead labour (the punishment of capital).” Through a meticulous study of the historical documents and court records he demonstrated that those hanged at Tyburn were, in the main, representatives, not of some special class of professional criminals or a lumpen ‘underclass’, but ordinary working men and women, largely indistinguishable from the working masses as a whole. The ‘crimes’ they had committed were in fact varieties of resistance to the growing imposition of the capitalist wage relationship by means of the criminalisation of traditional forms of distribution tolerated by and integrated into the lives of the poor as a whole.

Linebaugh did for the urban poor what his mentors, Edward Thompson, Douglas Hay and other Marxist historians at Warwick university in the late 1960s and early 1970s had done for the eighteenth century rural poor. Linebaugh needs to be read in conjunction with Thompson's classic The Making of the English Working Class (fortunately still in print) and the essays collected in Albion’s Fatal Tree (sadly out of print). Hay and Thompson showed how rural ‘social crime’ (a term originally invented by Eric Hobsbawm) such as poaching was an attempt by the poor to assert traditional rights to common land against encroachment by commercial farming. Linebaugh focuses, among other examples, on the struggles around ‘pilferage’ in the London docks. Pilferage, or the practice whereby dockers walked off with a small portion of the cargo they unloaded, was one of a number of widespread traditional forms of ‘payment in kind’ characteristic of pre-capitalist economy and which had to be firmly replaced by the wage relationship.

From the side of the bourgeoisie the chief “planner and theorist of class struggle in the metropolis” was Patrick Colquhoun, magistrate and merchant, and friend of the philosopher Jeremy Bentham. Colquhoun founded the first London police force, his own Thames Marine Police, to fight a working class he saw as “disciplined in acts of criminal warfare”. This criminalisation of custom, reinforced by the gallows, was a central aspect of the struggle by the bourgeoisie to impose the system of private property and wage labour. 

Linebaugh, like Thompson and Hay, was criticised by conservative historians, and many historically minded criminologists, as if he had been attempting a general history of eighteenth century crime and punishment rather than a specific study of the role of criminality in the struggle by capital to establish the wage relationship. He was attacked for only focussing on those crimes which could be seen as resistance to the advance of capitalism and for ignoring crimes against other working class people such as household burglary, violent theft, rape and sexual assault. Some of these criticisms are effectively dealt with in the afterword to the new edition.

It might be thought that this magnificently detailed study is only really for historians. The battle to defend pre-capitalist forms of distribution was, after all, lost long ago. In poor communities goods have continued to ‘fall off the back of a lorry’ down the generations, and in recent years alcohol and tobacco smuggling from the Continent has become something of a national sport. Nevertheless in the democracies of the global north working class resistance to capital long ago shifted to an organised labour movement oriented to struggle within the wage form rather than against it.

But today things are less certain. Capital is attempting to reverse 200 years of history, to decimate the labour movement and engineer a global recomposition of the working class as low wage, insecure labour. In parts of the global south capital is behaving very much as it did in eighteenth century London. We read of the growth of slavery and indentured labour or the collusion between multinational corporations and paramilitary death squads terrorising workers in Latin America and Africa. Meanwhile even in the United States the death penalty sends significant numbers of poor working class people to the chair or the needle. History is not simply the past. It is also a possible future, something which capitalism today is attempting to resurrect across large areas of the globe. Linebaugh’s characterisation of capital punishment as punishment by capital should alert us to these tendencies on the horizon.

Further material on these themes can be found on this site:

my article 'social crime revisited'        

article by Trevor Bark on crime and custom