Not big, not tough, not clever? | Discovering Desistance

Steve’s post about the soon to close consultations on community sentences and on probation (organisation) in England and Wales prompted me to offer just a couple of thoughts — mostly about the community sentences consultation. So, in reverse order, as it were, here they are:

Not clever? The latest consultations suggests the UK Government is hoping that ‘toughening up’ community sentences can somehow help with curbing the rise of the prison population (a laudable aspiration if only they would really own it and commit to it) and build public confidence in other sorts of sanction. And yet like many previous governments, they fall into an old trap. By trading on the discourse of punitiveness, they condemn their efforts to failure. As Shadd and Anna King once put it memorably, probation just can’t compete with high walls and razor wire; if punitiveness is the currency, then imprisonment has a higher value. That’s not to say that community sentences can’t or shouldn’t deliver punishment — they can, and there is evidence that the public will ‘buy’ community punishment. But they’re not daft. Community punishment makes sense as a way of securing positive payback that benefits communities; it can’t compete with prisons when it comes to imposing pains on ‘offenders’. It makes sense as a means of eliciting public good, not as means of imposing penal harm. When community punishment tries to do that, it also undermines its capacity to secure a positive contribution from reforming citizens. The section of the consultation on reparation and RJ implicitly recognises this, but it is underdeveloped and inconsistent with the tone of the rest of the document.

Not tough? What is tough? What does it mean? Is it harder to endure another futile episode of short-term imprisonment or to seriously commit to working hard at paying back positively — including by changing yourself and honouring your responsibilities to people around you? I’m not sure we really know the answer to these questions — I do know that short sentences can and do really hurt– not in the way we expect (i.e. via the pains of doing time), but rather through the dreadful and criminogenic disruptions that they visit upon prisoners and their families. Those interested in some compelling evidence on this should read Sarah Armstrong and Beth Weaver’s report on ‘User Views of Punishment’: (http://www.sccjr.ac.uk/projects/User-Views-of-Punishment/70).

Not big? Anyone remember the Big Society? It doesn’t seem to figure much in these two consultations. Maybe the idea doesn’t apply to criminal justice. Here it seems more a case of ‘The Big Exclusion’. Criminal justice services — and especially community sentences — could and should be recast as a route into active citizenship, as a locus for re-forming, restoring, re-qualifying citizens; basically as a field in which some citizens help other citizens to become citizens, and to enjoy all the rights and responsibilities that a republican version of citizenship entails. That seems to imply a key role for the public sector and for the voluntary and community sector. It doesn’t exclude the private sector — far from it — business has a major role to play, not least as a provider of opportunities for work. But the social capital that desistance requires is more about community development and engagement than private enterprise and shareholder interests. Yet, here we are presented with two documents which seem to have more to offer big business than the big society; one seems insistent on finding new ways to disqualify citizens who have failed and who have been failed; the other seems to insist on creating a market to drive down the costs/improve the quality of the services delivering disqualification (a proposition that seems equally tragic and comic to me at the moment).

Maybe I am lapsing into pessimism here. There are some interesting ideas and some intriguing possibilities in the two consultations. But the tone leaves me cold. The Rehabilitation Revolution can still deliver real and progressive change — but the slip back into punitiveness and the insistence that markets are the only or best mechanism for progress have diminished rather than enhanced its prospects.

I agree with almost all of this Fergus, but you seem to be a bit ambivalent about whether community sanctions are (or should be punitive)? From a sentencing perspective, I think there needs to be a punitive element ( whether it takes the form of limits on liberty, obligations to comply with onerous conditions, unpaid work for the benefit of the community etc). Both for the public and for the courts, sanctions need to impose a measure of pain. (We might have a philosophical debate about whether punishment is a necessary response to conviction but for the moment it is politically unavoidable). I don’t see that this is incompatible with a positive and constructive programme for supporting the process of desistance (itself something which is tough and demanding but not punitive because it has been chosen by the offender rather than imposed by the court.) This issue is not new, another version of less eligibility. Why should offenders get opportunities which are not available to similarly situated non-offenders? Always a challenge for progressive penal reform.”

So I agree with the need to re-brand community sanctions and to champion desistance narratives as the best way to talk about changing offenders’ behaviour and thereby reduce offending. However, we then have to get the courts to use the sanctions as an alternative to short prison sentences. This will need either legislative change or a change in judicial culture (and more than likely both) and it seems to me that judges ( or at least many of them) need to feel that community sanctions are a form of punishment that will be rigorously enforced. They will also need to be much more patient and tolerate many more breaches of conditions before resorting to custody and this can be encouraged by the sort of work you do in educating judges about the desistance process. Though I am not convinced that judges are the right profession to be chairing sentence reviews, so long as they are doing this it certainly makes sense to have specialist training for those who volunteer for this sort of work.

One thought on “Not big, not tough, not clever?”

neil hutton on June 18, 2012 at 10:24 am said:

I agree with almost all of this Fergus, but you seem to be a bit ambivalent about whether community sanctions are (or should be punitive)? From a sentencing perspective, I think there needs to be a punitive element ( whether it takes the form of limits on liberty, obligations to comply with onerous conditions, unpaid work for the benefit of the community etc). Both for the public and for the courts, sanctions need to impose a measure of pain. (We might have a philosophical debate about whether punishment is a necessary response to conviction but for the moment it is politically unavoidable). I don’t see that this is incompatible with a positive and constructive programme for supporting the process of desistance (itself something which is tough and demanding but not punitive because it has been chosen by the offender rather than imposed by the court.) This issue is not new, another version of less eligibility. Why should offenders get opportunities which are not available to similarly situated non-offenders? Always a challenge for progressive penal reform.”

So I agree with the need to re-brand community sanctions and to champion desistance narratives as the best way to talk about changing offenders’ behaviour and thereby reduce offending. However, we then have to get the courts to use the sanctions as an alternative to short prison sentences. This will need either legislative change or a change in judicial culture (and more than likely both) and it seems to me that judges ( or at least many of them) need to feel that community sanctions are a form of punishment that will be rigorously enforced. They will also need to be much more patient and tolerate many more breaches of conditions before resorting to custody and this can be encouraged by the sort of work you do in educating judges about the desistance process. Though I am not convinced that judges are the right profession to be chairing sentence reviews, so long as they are doing this it certainly makes sense to have specialist training for those who volunteer for this sort of work.