The aim of this Working Group is to explore the processes involved in the imposition and administration of offender supervision at different stages of the criminal justice process. Which parties are involved and in what ways? What kinds of offence, offender, risk-based, due-process, human-rights, victim-focused and other criteria are developed and deployed to frame their decisions? The different forms and purposes of offender supervision also affect the roles, powers and responsibilities of the different agencies involved. Who decides upon and oversees the content of offender supervision, the meanings and parameters of compliance with them and the processes and consequences of enforcement action.

If you would like to get involved, please contact the working group leaders:

Miranda Boone: M.M.Boone@uu.nl

Martine Herzog Evans: martineevans@ymail.com

Decision-Making and Offender Supervision: Our Belfast report

This post summarizes the progress made by the working group on decision making during the meeting we had in Belfast during the 23rd and 24th of October.

15 members of the decision making group made it to Belfast, and met in the Youth Action building, a very convenient and comfortable place for the COST meeting facilitated by our attentive host Nicola Carr. This meant that 12 jurisdictions were represented (Belgium, England, Germany, Greece, Ireland, Italy, Latvia, Malta, The Netherlands, Scotland Spain and Sweden). We have been working together for some time now and we are starting to know each others’ jurisdictions better. However, one always feels a sense of awe and excitement at being able to contrast the different legal, probation and parole cultures which make for rich and diverse European traditions.

In previous meetings we had decided to focus on decision making around breach because it is a situation which has not received much research attention and it is important in the three relevant decision making phases: pre-trial, sentencing and early release. Much work had been done in previous meetings discussing various available and workable methodologies in the different jurisdictions and finally deciding to explore the possibilities of vignette methodology for doing comparative research.

In order to do so, the group had previously created two common vignettes with John as a main character. We had one vignette with a 22 year-old unemployed John sentenced to community service and another with a slightly older John who had been released on parole. We had created various situations for John: John not attending work, John not attending an appointment with his supervisor, John getting a positive result in a drugs test, among others, and formulated various questions for the relevant decision makers about these.
So before we met in Belfast John had travelled to 12 jurisdictions and his situation had been presented by members of our group to judges, probation officers, immediate supervisors, parole board members and other parties involved in deciding his fate.

We had all done our homework before and we all brought to the meeting “process maps” with the relevant actors, norms, requirements and decisions, so we could all share an idea about how breach works in the different jurisdictions. And besides the maps, we had done pilots, most of us 3 or 4 interviews with the relevant decision makers using John’s community service and parole vignettes.

We used the first hours to present our findings and experiences using vignette methodology in the nine community service cases; after each two cases presented, we stopped for some discussion. Later on the same was done with the parole pilots in the five jurisdictions where it was tested.

Thanks to the great leading team made up of Miranda Boone and Niamh Maguire we managed to respect allotted time limits which allowed the group to hear presentations by all the members, clarify doubts and to engage in discussion.

As it was soon clear that we were going to work intensely, some members were kind enough to take advantage of one of the breaks and bring back wonderfully caloric pastries to keep us going during our passionate discussions.

The focus on previous meetings had been on methodology. In Belfast it was obvious that some more methodological discussion had to go on if we were to further our field work in the future, but results in the different jurisdictions were rich enough to start working on them.

Perhaps the main point around methodology was that vignettes had proved for most of us to be great conversation starters: they made decision makers talk and allowed researchers a good understanding of the decision making process, the roles of the actors involved and the criteria used, both at a formal and at an informal level. If we are to expand research beyond the pilots, however, it is clear that we shall have to revise the various situations we put John in, since not all made sense in all jurisdictions (eg. in Spain it is irrelevant if John arrives late to his work placement because he is taking his mother to hospital); we should add more information on context and we should revise the questions we posed, because some of them were too detailed and perhaps some of them were unnecessary.

Most of our discussion, however, went beyond methodology. We went through a social sciences equivalent to soul searching questioning, asking ourselves ‘what do we really want to know?’ and ‘what it is exactly we want to compare?’, ‘are our rich results comparable?’, ‘should we try to somehow quantify them to make them more so?’. It was clear that we had to make a decision on decision making, and this allowed us to clarify our research questions.

It is difficult to sum up all the points of discussion, but after some time it was clear that the results of the pilot were rich enough to show both expected variation and striking similarities amongst jurisdictions and amongst the two phases analyzed (sentencing: community service; and early release: parole). At the end of the last day, we managed to produce a list of the most relevant topics/research questions around which we could already compare our results. As well as a framework of analysis for comparison of our results we also agreed that we needed to develop a way to translate our qualitative data into quantitative data to allow for comparison across and within jurisdictions on a more abstract level. So for example, if we wanted to compare the level of discretion exercised at each stage of the decision-making process by different actors we could adopt a simple 3-point scale that might look like this: a lot, some, not at all. Applied across all the different measures we are interested in, this approach could help us to examine how breach works on a more abstract level and even allow us to develop models of the different types of breach systems in Europe. As Anders Persson and Alfredos Laurinavisius had already begun this work the group decided to delegate the job of further developing a way to quantify our data to them. Good luck Anders and Alfredos!

Lastly, I would like to highlight two very interesting themes that emerged in the pilots I conducted in Spain and that later emerged with even greater force in our discussions in Belfast. The first one is the observation that professionals at the various levels have developed the ability to circumvent sometimes rigid norms and often retain an important level of discretion. This level of discretion exists in spite of, or perhaps because of, the existence of protocols and guidelines. This raised an ethical question: what impact could this result have? If we say there is great room for discretion could this be used as an argument to justify the introduction of tougher legislation, aiming at restricting practitioners’ professional discretion?
Interestingly and in connection with the previous idea, the second theme was the existence of strong narratives of giving second chances, using Kristel Beyens’ expression, that emerged in many, if not most, of the jurisdictions. These narratives were based on the idea that if offenders had the right attitude, if they tried, they could fail, but their failures to comply could be interpreted as difficulties rather than as a cause for breach.

Many things were clear (again!) at the end of the meeting: that we were dealing with very exciting ideas we would like to keep working on, that it is possible to work hard and have fun at the same time and that ours is a very comfortable and fun group to work with, capable of orderly, and disorderly, but always fruitful and interesting discussion.

Ester Blay
Universitat Pompeu Fabra (with the careful editing of Miranda Boone and Niamh Maguire)

Designing vignettes for comparative research on breach

This post, reflecting on the progress made by the ‘Decision-Making and Supervision’ group at our recent Malta meeting, comes from Niamh Maguire.

The Malta meeting was a very productive and successful one for the members of the decision-making working group. The aim of our meeting in Malta was to develop a number of vignettes that could be used to examine the issue of breach in comparative contexts. Once developed the plan is to pilot the vignettes in a number of jurisdictions to test how useful vignette methodology could be for exploring the issue of breach in offender supervision comparatively. We managed to leave Malta with an outline of two comparative vignettes that we plan to pilot over the coming months in a number of different jurisdictions.

In Malta we built on the work that we had completed last October in Bratislava where we explored in-depth the potential for using vignettes as one part of a comparative methodology to examine decision making in the context of offender supervision in multiple jurisdictions in Europe. Whilst the focus in Bratislava was on understanding the advantages and disadvantages of vignette methodology, in Malta we agreed that while there are obvious drawbacks to using vignettes (particularly the inability to observe what goes on in practice first-hand), they offered us enormous advantages perhaps the most important of which was the ability to use a common scenario to explore decision making in many different contexts. Also highlighted was that fact that all research methodologies and methods have drawbacks and the important thing is to understand what these are and to make sure that our chosen methodology is appropriate for our research aims.

In preparation for our Malta meeting we worked on identifying the types of research data that could be collected in different jurisdictions as this would influence our choice of research methodologies. For example, in some countries access to court reports might not be problematic whereas access to the judiciary might be impossible. Representatives from each jurisdiction filled in a matrix designed to capture the possibilities in terms of research data and methods. We began our meeting in Malta with an overview of this matrix by Dr. Trevor Calalafo and it emerged that the most popular methods were interviews, focus groups and vignettes and that while access to the judiciary was possible in many countries it certainly was not easy.

We chose the issue of breach to focus on as our review of the literature showed that there was a dearth of research in Europe on this important issue in all decision-making three phases (Boone and Herzog-Evans 2013:85-86). We then had to decide which point in the decision-making process we would focus our efforts on. The decision-making group had already identified three stages in the decision making process relevant to offender supervision; the pre-trial phase, the sentencing phase and the release phase. Strong interest in the group emerged for exploring the sentencing and release phases and a sub-group was established to develop vignettes for each of these phases.

Before we split into our sub-groups we discussed our aims and objectives and the general approach we’d take to constructing the vignettes. We had to remind ourselves that our focus was on testing vignettes as a means studying breach comparatively and so the vignettes should be developed to give us maximum insight into the differences between jurisdictions in terms of procedures, processes and approach of the various decision makers.

If we want to compare approaches to breach in different systems then we needed to design something that would make sense and be comparable across a range of jurisdictions with very different laws, procedures, decision-makers and cultural contexts. Central to the design of the vignettes was figuring out what a realistic scenario was for each jurisdiction. Making the vignettes make sense in each jurisdiction meant designing a model and then identifying the various aspects of the model that will differ depending on the jurisdiction.

Our next consideration was the degree of detail to include in the vignettes; if we over-specify we risk getting responses so diverse that it will be difficult to distinguish between differences that are related to the detailed factors we have included and those related to differences between jurisdictions. Over-populating the vignettes also risks making them workable in some jurisdictions but not others. The balance between the degree of detail necessary and allowing the vignettes to remain vague in places was recognized as being really important. Although it was agreed that we would use vignettes as a starting point in a semi-structured interview, as a way to situate a discussion about breach in relation to a specific set of circumstances, it also emerged that we should not forget to can pinpoint a definite decision. Most important though is supplementing a rather broad and necessarily vague description in the vignette with a very detailed topic list to make sure that we collect the same kind of data and thus really have the opportunity to compare our data at the end.

The idea of seeing breach as a process involving many stages and many actors rather than just a one-stage event also emerged. We wanted to gain insight into the process of breach which involved capturing the initial decision of the immediate supervisor to report the breach of conditions, the decision of the next official actor (which could be a probation officer or a member of a local authority) and then the decision of the ultimate decision-maker in relation to the official response to the breach (which could be a judge, a probation board or another body depending on the jurisdiction). This approach is based on the idea that we cannot fully understand decisions at the breach stage without exploring the stages that precede it. Following discussion on this issue, we realized that the number of stages would differ depending on the jurisdiction but that there were likely to be at least two if not three stages. As a consequence we needed to make not just one but three vignettes per case to represent these different stages. Importantly, this meant capturing the perspectives of immediate supervisors, probation officers and ultimate decision-makers (in many cases judges).

As this point we split up into our sub-groups and the challenging but highly enjoyable job of actually writing up the vignettes and choosing the breach conditions began.

To be continued…!

References

Boone, M. and Herzog-Evans, M., (2013) Decision-Making and Offender Supervision in F. McNeill and K. Beyens (ed.s) (2013) Offender Supervision in Europe. Basingstoke, Hampshire: Palgrave Macmillan

 

 

11 year olds on punishment and supervision

On Tuesday of this week, I faced my biggest public-speaking challenge for a while — I had agreed to go into my daughter’s school to speak to two primary 7 (aged 11-12) classes about punishment. Though I hadn’t been expecting it, the children’s responses really left an impression and got me thinking about our interests in penal decision-making; and about our aspirations to engage with public understandings of supervision. So, I thought I’d share the approach that I took (a kind of deliberative process) and the children’s reactions and see if any of you might be tempted to repeat the exercise in other places. If we want to engage with public attitudes and understanding, we should start with the decision-makers of the future!

The PowerPoint slides from the 90 minute session can be accessed here: Punishment_11-12

You’ll see that I started by getting the children to reflect on their examples of punishment at home, at school and in other contexts. We also had an interesting discussion about the ways that they punish and forgive each other as friends (i.e. when they fall out) — and I tried to get them to think about unfair punishment and how that might be a result of a problem with the process of deciding how to punish, or a problem with the decision itself. As it had hoped, this allowed us to get a three main purposes or justifications of punishment: (1) making people pay back for harms done (2) teaching people a lesson and influencing their future behaviour (3) sending clear messages about how we feel and what we believe is wrong.

On my daughter’s advice (in fact at her insistence), I showed them lots of pictures of different kinds of punishment — past and present. Nothing gory or gratuitous, but ranging from capital to corporal to carceral to community punishments. This set the scene for me to lay out a simplified range of sentencing options available in Scotland today: warnings, financial penalties (fines and compensation orders), supervisory penalties (including probation, unpaid work and electronic monitoring) and custodial penalties. I also asked the children (working in groups) to sort a list of crimes in order of seriousness, and to order a list of possible penalties in terms of severity. They arrived at broad consensus fairly readily, but they were quick to note that in both cases (crimes and punishment), seriousness or severity depended on the individual circumstances: how big a fine, how long on supervision or in prison, how much was stolen, why was the driver driving dangerously, etc…

Next, I introduced them to a case and ‘put them on the bench’; i.e. I got them to close their eyes and imagine themselves in the judge’s seat, with the ‘offender’ in front of them, the prosecutor and the defence agent, and the public. The fact that many of them had been on a recent trip to a court (to conduct a mock civil trial) helped them get the feel for this.

The first phase of deliberation about the case introduced the following information:

  • Robert Johnson breaks into a house in the night. He breaks a window to get in. No one is at home. He steals a TV and an iPad; goods worth about £1,000. The cost of repairing the window is £250. Robert has been in trouble before; he has two convictions for stealing from shops. What sentence would you pass?

Perhaps unsurprisingly, the children (having discussed the task for a few minutes in small groups) settled mostly on financial penalties, perhaps following the cue that the monetary costs of the crime provided. But some supplemented the notion of pound-for-pound repayment (in the form of compensation) with punitive damages (usually a few hundred pounds, paid to the state via a fine). A small number of the groups wanted the punitive part of the sentence to involve imprisonment.

The second phase introduced some information about the victim:

  • The owner of the house is an old lady called Mrs Beech. She is a widow and lives alone. She has been in hospital at the time of the break-in. She doesn’t get out much anymore and relies on the TV for news and entertainment. Her iPad held all the photos of her grandchildren who live in Australia and she used it to Skype them regularly. She has house insurance and can get the TV and iPad replaced (and maybe the photos too), but she has been left scared about living on her own. She fears the thief might come back. Does this information make you want to reconsider the sentence you gave Robert?

Again, perhaps predictably, the children responded to this information by adding to the punitive element of the sentence. More groups opted for custody (which they wanted to be in addition to the payment of compensation) and the length of the custodial sentences grew. Some expressed a more emotive reaction to the case — a stronger sense of anger about the harms done and a clearer desire to express that anger in punitive terms.

The third phase introduced some information about Robert:

  • Robert is 21. He is a drug addict and is homeless. He has been living on the streets since he was 15, when we ran away from a children’s home. He was in the home because his mum couldn’t look after him properly because of her drug problem. He doesn’t know his dad. He says he broke into the house because he was desperate for money. He has a son (aged 3) who lives with his ex-girlfriend. He wanted to be able to buy his son something nice for Christmas. He didn’t have any money because (a) he can’t work because of his drug problem and (b) his benefits had been stopped when he missed appointments (also because of his drug problems). Does any of this information change the way you would sentence Robert?

At this point, the mood in the class altered. The children were still concerned for Mrs Beech, but now many of them felt concern for Robert too. It was at this point the supervision began to be discussed as an option. For some this was about helping Robert tackle his drug problems — and his homelessness. For others, it was about making sure these problems were tackled so that he wouldn’t offend again. Some wanted supervision to be added to the fine and/or imprisonment, but several groups now abandoned financial penalties on the grounds that Robert had no prospects of paying. One or two now looked to electronic monitoring as condition of supervision — both the satisfy the need to punish and to control or influence his behaviour. A few suggested he should go to prison since at least he would have a place to stay and to get off drugs.

In the final phase, I told the children that they had decided to defer sentence for a year, since Robert had a place lined up in drug rehab, and then added the following:

  • During his time in the rehab, Robert wrote a letter to Mrs Beech and, after some careful planning, they met up. He apologised and explained why he had done what he had done. Mrs Beech was relieved to find that he hadn’t targeted her house for any particular reason. She was also very glad to know that he was sorting his life out. She and Robert agreed that he would spend the next 2 or 3 weekends tidying up her garden as a way of saying sorry. The time has come to pass final sentence on Robert. What will you do?

For many of the children, this was enough for them to decide to settle the matter with a warning. But for others, they wanted a period of supervision — both to ensure that Robert received help to ensure that progress was sustained and to make sure that the change was real.

You probably won’t be surprised to hear that I went on to explain a little about desistance from crime, and about the role that age, social bonds and shifts in identity play in the process. Again, they seemed to grasp this intuitively. Unfortunately, I ran out of time for the last step — which was to invite them to develop a supervision plan for Robert.

I hope you can see why I was so impressed and encouraged by the children’s responses. They demonstrated their ability to assimilate and respond to new information — but without forgetting the importance of what had gone before. And they were careful to balance the interests of the different parties and to attend to all three of the justifications of punishment that we had discussed (though I made no real effort to encourage them to do so).

So… is anyone tempted to repeat the exercise with some 11-12 year olds in your country?

 

 

Comparative research on decision-making: Reflections on the Bratislava meeting (from France)

This post comes from our colleague Prof Martine Herzog Evans…

Whilst my friends and colleagues were brainstorming about comparative research methodology in Bratislava on October 25-26, I was trying to listen to their presentations and debates via a rather unreliable skype connection. However I got the gist of what was said. Unfortunately I did not get a chance to participate in the ensuing debates and for this reason, I would like to make a series of observations and suggestions in the present post.

First about methodology

On Saturday morning Kristel Beyens and Niamh Maguire discussed methodology in sentencing research. Vignettes were mentioned as being useful tools; however there was much debate about their limitation in particular in terms of realism and reality.

For this reason, the common conclusion was that vignettes could not be stand-alone tool.

Much as I agree with this I would also like to say that there are also ways and means to make ‘vignettes’ closer to the truth. Usually, vignettes are fictitious cases; they are typically of a maximum of one page long. Indeed a lot is missed: files that courts (and other decision-makers) rely on; hearing and what goes on during them… and so on. One way around this to a certain extent is to create fictitious files rather than cases.

As an example, I am currently conducting a joint research with two psychologists from my Uni (Patrick Mollaret and Régis Lefeubvre) which focuses on values and principles of juges de l’application des peines (JAP).

We had much debates together about this technique. Having worked in sentences’ implementation for decades by now, I know too well that a huge amount of parameters lead to JAP decisions. There was no way, I told my psychologist colleagues that vignettes would reflect closely enough what JAP were used to. However they were used to building their studies like that and I gave in on two conditions: a) that the so-called vignettes would be as I mentioned above fictitious files; b) that the interview we would have based on the vignettes would strictly follow their scaled-questionnaire, but would also allow for discussion with JAP so that we would understand why they chose one way or another

My colleagues designed the scaled-questionnaire and I designed the fictitious files. It comprised : an extract of a PO report; an extract of the prosecutor’s requisitions; in one case an extract of the risk assessment made by an ‘expert’ and in all breach cases, an extract of the ruling which had granted the decision which was breached.

Four cases were designed with specific parameters as guidelines from the psychologists and based on what I knew was their typical situations and contexts and also the usual language of PO reports, prosecutors’ requisitions and experts’ assessments. All interviewees have so far confirmed that these were absolutely typical to a T. For each one of them the offender had been sentenced to imprisonment and was referred to the JAP for transformation of his sentence into a CSM. Then each offender breached. JAP are asked about their dealing with both granting and breaching.

So far I have used other methods with JAP research: ruling analysis (see below) + observation + interviews + interviews of those they work with + interviews of probationers (the latter ongoing). I have to say that vignettes have taught me a thing or two about JAP’s perceptions and about some of their biases (in particular with addicts: their understanding of addiction does not seem to be as good as their rulings had allowed me to believe).

Conclusive note on this first comment: working with scholars from a different field is particularly enlightening when one is designing research methods.

I would also like to mention a research tool which is seldom mentioned in the literature: quantitative and qualitative analysis of judicial rulings. Judges also write rulings to explain why and how they made their decisions. In French law it is called ‘motivation’ (the word is telling) and it is in my experience a very powerful research tool and a wonderful way of getting closer to why the decisions are made.

As an example, in my first bigger scale JAP research (soon published by l’Harmattan, French reentry courts: Mister Jourdain of desistance), I analysed 1,300 rulings. I looked for a great deal of factors… long story.

Indeed one finds in these rulings a lot of legal babble and to an extent, a lot of things which they are expected to do and say (postures) – depending of course on the legal systems and the demands they put on courts’ ‘shoulder’. But, and this is where being a lawyer is immensely useful,in order to use this particular tool, one needs to know what and where to look for in a ruling. In particular one needs to be able to distinguish, one the one hand, what is legally mandatory (and how much leeway there is in this respect – eg I analysed the use of guideline articles as opposed to specific technical articles) and, on the other hand, what is a mere description of the facts as presented by other parties (eg PO, prosecutor, attorney). One must also distinguish what has been proved and established (for instance the probation service report has checked whether the person actually has employment) and what has just been said (for instance the probation service just states that the offender said he had a job). Lastly, the essential part of rulings, the one which is the most promising in terms of empirical research is where the court’s own point of view appears – as opposed to the description of facts, opinions, and legal rules which apply.

For instance, in French rulings there are two to three (sometimes one, four) paragraphs which represent the core analysis and thoughts of the court situated right before the court states what the decision is. The analysis of these one to four paragraphs is an exceptionally rich empirical source.

These paragraphs convey judges’ views, appreciations, values, principles, on offenders, measures, contexts, issues (eg addiction, domestic violence). It explains the process of their thinking and not just the output (the decision which is made).

Like with vignettes it is even more powerful when interviews ensue where judges are asked questions about rulings. As an example I asked them for whom they wrote their rulings: for prosecutors (in case they appealed), for courts of appeal (in case there was an appeal and their ruling would be scrutinized), for society in general (because they rule in the name of the French people/or because they would be blamed if they made a mistake), or for offenders. I got a great variety of responses…. (do read my book : LoL!) and several of them responded that they also wrote for themselves… in order to check out that their first view of the case would still stand when they would have to objectively justify it in writing (in some cases it did not).

In conclusion I cannot imagine conducting a research on any judicial decision (and in particular in sentencing) or related issues such as release, bifurcation or breach without analysing rulings.

About things to study

In our book chapters each one of the COST work group leaders mentioned gaps in the literature. In our decision-making chapter, Miranda Boone and I pointed to a long list of them.

In the following paragraphs, I would like to insist on several re sentencing (but this could also be said about release and breach decisions, especially whenever a court is involved) and in particular:

Cognitive processes

As I mentioned in the book chapter with Miranda, there is an important US literature on the cognitive processes of judicial DM (see for ex.: Klein D. and Mitchell G. (eds.) (2010), The Psychology of Judicial Decision Making, Oxford University Press). To the point where the American Judges’ Association made recommendations based on what is now known (P. Casey, Judge K. Burke, Judge S. Leben, Minding the Court. Enhancing the Decision-Making Process. A White paper of the American Judges Association. Making Better Judges, October 1, 2012). In particular, they recommended ways of going back to the reflective brain rather than relying as most experts in a given field do, on their reflexive brain. Interestingly the reflexive brain is what explains this ‘hunch’ which Cyrus Tata was referring to on Friday in Bratislava, The reflexive brain is less sugar greedy and less tiring and works well enough most of the time. However, it is also open to biases and errors (and judges are no different: C. Guthrie, J. J. Rachlingski, A. J. Wistrich, ‘Inside the Judicial Mind’, Cornell Law Review, 2001, n° 86(4). Hence the recommendations made by the AJA: to use checklists, to eat enough and have small breaks, to sleep enough before a hearing, and so on.

As Cyrus recommended hunches are also important and should not to be ignored for being either uninteresting or interviewee’s defensive strategies. They can be and are also study objects. I would thus strongly recommend we also included cognitive psychologists and even neuroscientists (as a good proportion of this literature comes from neurosciences) to any ‘hunch exploration’ endeavour.

Collegial versus one judge courts

In the aforementioned literature, there are some papers on the difference between collegial courts and one judge courts. In collegial courts (e.g. V.A. Hettinger, S. A. Lindquist & L. Martinek, Judging on a Collegial Court: Influences on Federal Appellate Decision-Making, University of Virginia Press, 2007) there is a group factor and there are other relevant ones: the respective status of the judges, who has the more experience or charisma, who studies the files better and son on… The necessity to render a common judgement has lots of consequences (Malzmann F. Spriggs J. F. OO & Wahlbeck P. J., Crafting Law on the Supreme Court: The Collegial game, Cambridge Univ. press, 2000; Baum, op. cit.) and how people get along as well as organisational factors play a great part in their decision-making (Cohen J. M., Inside Appellate Courts: The Impact of Court Organization on Judicial Decision Making in the United-States Courts of Appeals, Univ. of Michigan press, 2002).

I may be wrong but I am not aware of such studies conducted in Europe. It clearly is a major issue

Courts of appeal

IT’s linked because courts of appeal are typically collegial, but they have particularities which lower courts don’t possess: judges are often older and more experienced; they may also be more consensual and (boring?) as in some legal systems they will have needed not to make any waves and to be friends with the right people in order to become appellate judges. They may also be particularly concerned by their public image and the desire to make “good justice” (Baum L., Judges and Their Audiences, Princeton Univ. press, 2006 ) and may thus be very sensitive to the risk of reversal by higher (supreme) courts( J. Barnes Bowie, D. R. Songer, ‘Assessing the Applicability of Strategic Theory to Explain Decision Making on the Courts of Appeals’, Political Research Quaterly, 2009, n° 62(2): 393-407).

It is conversely extremely difficult to approach them and to do research with them.

I do not think that we know much about how European Courts of Appeal judge (what are their values and views) compared to lower judges.

Attorneys

We have little knowledge about what type of attorney influence judges. What judges expect. What is a good attorney? Whether they can and under what conditions, reverse a case’s outcome.

We would need to know more about factors like their status (newbie… ordinary… Bar star…), their eloquence, their legal knowledge, their knowledge of the case or of their client? Others?

It would also be important to know what their clients expect? Is it mainly outcome related or is it more about the fact that he makes sure they’re given a legitimate/fair trial? My own hunch based on the legitimacy of justice literature is that attorneys also play their own part in the perception which offenders have about how legitimate justice is.

Similarly in jurisdictions where release and breach decisions are made by courts and probationers have a right to counsel, we know little if anything about the role played by attorneys in assisting the desisting process and, more immediately about their influence on the courts.

In my aforementioned JAP research I also interviewed attorneys (N32) and found that there may be a fascinating dichotomy in this respect between classic penal attorneys and holistic attorneys, who develop a form of therapeutic alliance with their clients. I am currently launching a specific research on attorneys in sentences’ implementation to test this typology.

Procedure

It struck me that we were discussing sentencing as if it the sentencing process was the same everywhere. However there are fundamental differences and to name a few:

          Whether the legal system is adversarial or inquisitorial…. The balance of powers and the role of the judge are vastly different;

          Whether the court decides on the day of the trial or whether it postpones its decision. In the first case the trial is their last memory of the case before they decide; in the second, they can withdraw from the emotions of the trial, forget about what was said and rule more neutrally, but less humanly based on the file. In fact in some cases the court can decide between the two and the reasons are also interesting to analyse;

          And of course whether there is a hearing at all or not. In many situations where people are sentenced nowadays, there is none at all…

Martine’s suggestion

I have an idea which may be putting the cart before the horse (in French the cart before the ox). Nonetheless, here it is…

On Friday, we heard Reuben Miller telling us that reentry programmes, which being an outsider I imagined were wonderful, are in fact maintaining people in a poverty-exclusion web. He told us they were not so much about helping people desist (: finding a job, real housing…), but much more about asking people to admit they were ‘fucked up’ (one of his interviewees’ quote) and accepting the help required to ‘un-fuck’ themselves up.

Parallel to this, there is more and more criticism against the Drug Court movement (e.g. E. Miller, ‘Drugs, Courts and the New penology, 2009, Sandford Law and Policy Review, 2009, n° 20(2): 101-145) – to be fair to a great extent fuelled by the desire of policy makers to withdraw funding, but some of what critics say must be listened to: in some cases (in particular in the US? ) it seems, again, to be more about asking people to take responsibility for their actions, for them to change… and not always about really helping, supporting, or ‘accompanying’ as French probation practitioners say (suivre) them on their desistance journey.

All this makes me all the more confident that one of the core element about what practitioners, institutions and agencies do is their values, principles, perceptions.

As Cyrus pointed out, we cannot just analyse things from the top; we must also get down to street level as Reuben called it.

A mix of both is nonetheless probably essential.

For instance it is important to see that in the framework decision 947, it is allegedly about reinsertion… but really it was all about saving dimes, pennies or bucks in the first place. Once that is understood, to what extent does it impact on practitioners who will be implementing it?

Another example: in France there are beautiful legal reinsertion and resocialisation principles and guidelines. But in fact in the field social work has virtually disappeared (at least from official probation) as PO say a)’ it’s not my job to help’; b) ‘so long as offenders don’t want to stop we can’t do anything’; c) ‘our job is to be an interface between the judiciary and the rest of the… world, and other agencies’.

And then there is what I said above about cognition: what feeds the hunch is a mix of experience and shortcuts in practitioners’ brains and of biases, values and principles. This is why we need to know what the inner principles (and not only the legal or even the institutional principles – and perhaps we need to compare them) are.

Another reason why I am interested in this is that we have also heard M. Phelps in Liverpool and read Fergus (‘Community Sanctions and European Penology, in Daems and al., European Penology, Hart Publishing, 2013, 171-191: ‘) that there is a risk for CSM to become the mass punishment which follows – and/ or is parallel to mass incarceration. There are thus serious concerns about human rights in CSM.

There is some literature on values and principles in probation.

So far it has essentially been addressed by the criminology literature:

Ward and Connolly, Morals, Rights and Practice in the Human Services, 2008, Jessica Kingsely Publishers

Canton and Eadie, ‘Accountability, Legitimacy, and Discretion: Applying Criminology in Professional Practice, in  B. Stout, J. Yates and B. Williams, Applied Criminology, 2008, Sage

M. Nellis and L. Gelsthorpe, ‘Human Rights and the Probation Value Debate’, in Chui W. H. and Nellis M. (eds.), Moving Probation Forward: evidence, arguments and practice, London, Longman Pearson, 2003

Or in the social work literature:

Eg: Sarah BANKS, Practical Social Work, 4th ed, 2012, Palgrave

With all due respect most would have needed a legal touch when they have touched upon… legal matters.

 

My point is we need to cross methodologies here and in particular: criminology, social sciences, psychology , cognitive psychology, neurosciences and law.

How do we do this and would you like to join me in the study of values, goals, principles, guidelines, and deontology?

Early deliberations on Decision-making and Supervision

From Miranda Boone, co-leader of the Working Group on Decision-making and Supervision…

During the general meeting of the Cost Action on 4 and 5 October in Brussels, the Working Group on Decision-making and Supervision held its first discussions. This Working Group was the last working group that was established under the Action. Despite that, it is quite popular. It has fourteen members now, coming from eleven different countries: Belgium, Germany, France, Hungary, Ireland, the Netherlands, Scotland, Slovenia, Spain, Switzerland and the United Kingdom.  We all prepared a paper for the meeting containing the main decision makers and decision-making processes concerning offender supervision in our countries and an overview of the research that has been done already.  Martine Herzog Evans captured the main topics of the different papers in a PowerPoint presentation that structured our first deliberations: What are the aims of supervision? What does the Probation Service do? Who decides on breach? What are the reasons for it? What agencies are involved in supervision? Who has the power to decide?

At the end of the second session we took the important decision to divide our working group into three different sub-groups that will be working on three decision making stages, namely  pre-trial supervision, sentencing and release. In all three phases we will study both granting and breaching/revocation of supervision and we will explore factors that influence the decision-making process as well as the outcomes of decision-making.

The remaining sessions we used to discuss these different stages of decision-making. Very interesting questions came up that were sometimes investigated on the national level, but certainly not at the comparative level. For example:  What is the role of Probation in the pre-trial stage? Are Advisory Reports available during this stage and how do they influence the decision-making process? How is the judge informed before sentencing and by whom? Is a pre-sentence report available in the decision process, for whom, and how is it decided when and for whom a pre-sentence report is made? What is the influence of misconduct in prison on the early release decision? What are the reasons for breach: re-offending or non-compliance? In cases where ‘dangerous offenders’ are not prepared for their release, what is the influence on reconviction-rates? Are irregular migrants prepared on their release? How?

We ended up with a huge list of factors that possibly influence the decision-making process and many plans concerning the continuation of our work. We were all very excited about the progress we made, but also very much aware of the huge task that is still waiting for us.

So, despite our popularity, we are still in need for more members, in particular from the Nordic countries, but also from other countries that are not covered yet.  Please don’t hesitate and approach one of the two working group leaders (Miranda Boone and Martine Herzog Evans)  in case you are interested.

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