Here’s a post mainly for the MSt students at Cambridge that I’m teaching today and tomorrow (though I hope others will find it interesting too…). What follows is the conclusion of chapter that Gwen Robinson and I wrote for a book on Legitimacy and Compliance in Criminal Justice, edited by Adam Crawford and Anthea Hucklesby (published soon by Routhedge).
In a recent book which has attempted to conceptualise and evaluate prisons using a framework informed by prisoners’ and prison staff members’ views about the aspects of prison life which they value, Alison Liebling introduces the notion of ‘moral performance’ (Liebling 2004). The concept of moral performance brings together a number of dimensions of prison life, among them justice, fairness, safety, order, humanity, trust, and opportunities for personal development. Liebling presents this notion of moral performance as an alternative and more meaningful measure of ‘what matters’ in the prison context, and of the quality of prison life, than those measures which have arisen from the managerialist ‘performance agenda’ of the 1980s and 90s.
Although the specific measures of ‘moral performance’ developed by Liebling do not translate unproblematically to the community sanctions context, we nonetheless think that the concept of moral performance is a potentially very useful one, and it is one which chimes with the limited research which has, to date, been conducted on offenders’ views of statutory supervision. Like good sociologies of prison life (most recently Crewe, 2009), studies of offenders’ experiences of community sanctions reveal that structures and systems are only part of the story of how justice or punishment works out in practice. The narratives of supervision collected for the oral history study discussed above, for example, ultimately reveal the extent to which the meanings and natures of such sanctions are negotiated between the people involved (McNeill, 2009).
As we noted at the outset, if community sanctions have a definable form or architecture it is much less obvious than that of the prison. It is not just that legitimacy can ebb and flow for all of the reasons discussed above; the shape of the sanction itself is malleable. It is true that there are places and times where those on such sanctions must be and, perhaps more importantly, where they are expected to do something (whether unpaid work or participation in programmes or individual supervision) or even to be a particular kind of someone (a willing worker paying back, a remorseful offender making good, a recovering drug user staying clean). There may be no locks and keys, but there are borders and checkpoints to negotiate here, each of which opens up the possibility of interactions perceived as legitimate and illegitimate (Rose, 2000). The sentencing process is the first of these, in which the would-be subject of such a sanction must yield to (or better still facilitate) their construction as a suitable subject for a community sanction (perhaps even a suitable subject for leniency) – and hence for passage into the community sanction and, by implication away from the prison door (McNeill et al., 2009). Once in the process of the community sanction, there are important and subtle forms and rituals to be observed in the numerous disciplinary passages through which the subject must pass in the process of supervision. The supervisor is the ‘key-holder’; each point of passage involves them in disciplinary judgments about the offender’s successful negotiation of assessment, intervention and review processes.
Probation law or ‘rules’, like prison law or ‘rules’, may represent other forms of ‘code’ (Lessig, 1999) or architecture (Jones, 2006) that lend a certain form to the experience of community sanctions. In any jurisdiction the law may determine the formal parameters of obligations (and perhaps entitlements) that community sanctions create. But beyond this legal scaffold, community sanctions have remarkable malleability and thus vulnerability in their character; whereas the prison physically frames the lived experience of imprisonment, the community sanction has no such obvious ‘frame’, except in the interactions between its executor (the probation officer) and its subject (the probationer). Thus it is in these interactions that such sanctions are continually invented and reinvented. The physical locus of such interpersonal engagement is important, but it is not in and of itself definitive of the experience of the sanctions that these actors co-construct (however equally or unequally).
But equally importantly, the probation officer or social worker is influenced in their crucial contribution to the construction of the sanction by the political, social, cultural and professional worlds that they inhabit. As we have noted throughout, where these conditions generate pressures to pursue external legitimacy or credibility (e.g. McNeill et al, 2009), they may impact adversely on the internal quest for those same qualities (cf. Ugwudike, 2010 forthcoming). A key message of our analysis is that, particularly where sanctions aim to elicit change, the skills of the practitioner in bridging the social distance between the ‘punished’ and the ‘punishers’ are likely to be critical to the process. However, the conditions under which the ‘punishers’ labour can create countervailing forces, driving the parties apart. Especially in this context, the quality and the authenticity of the practitioner’s moral performance seem likely to lie at the heart of the matter, since these moral qualities will profoundly affect the meaning, nature and experience of the sanction. Within this context, the legitimacy of the practitioner – on which his or her influence depends — is hard-won, easily lost, and almost impossible to recover. Put another way, it is as difficult to enable legitimacy to flow into a community sanction as it is easy to let it ebb away.