Multiple Methods in Malta or: the joys and pains of comparative research

This time, our COST caravan pitched the tents on the beautiful and hospitable island of Malta – Grazzi to Sandra, Mariella and Trevor! The spring sun was tempting, but we resisted and stayed indoors to continue the work we started in Bratislava last autumn. There, the different working groups had begun to develop ideas on how to actually study offender supervision comparatively. Meanwhile the multitude of methods under scrutiny is impressive: Supervising staff keeping diaries; giving supervisors and supervisees a ‘photovoice’; doing observations as well as  using vignettes are discussed and we will see pilotes in due course (some have been done already!).

Part of the Working Group on “Experiencing Offender Supervision” had decided to go quantitative. For the Malta meeting Jelena Zeleskov and Ioan Durnescu had prepared a good paper highlighting once more the relevance of aspects such as autonomy, the quality of relationship or legitimacy and fairness for compliance, for offender supervision as such and particularly for the experience of those undergoing it. They also made the connection to the supervisee’s human rights as laid down in various instruments – if we, for example, stress the relevance of the offenders’ “cooperation regarding interventions that affect them” (as in The Council of Europe’s Probation Rules) we should now how they perceive these interventions. But why choosing a quantitative approach? Well, at first there is a COST Action-inherent reason: So far this approach is missing and we promised to explore a variety of methods. Second, results may easier be generalized to the overall supervised population and, more important, a survey design with closed question makes it easier to obtain results comparable between jurisdictions and to process them. Thirdly, quantitative data sometimes seem to be harder to ignore for stakeholders – at least they have additional value when it comes to policy impact.

However, from Ioans and Jelenas paper and also from my own experience with comparative prison research using surveys it is quite clear how ambitious that task is and how stony the path to go. We all felt it when we were discussing the next steps. We even agreed quickly that we want to restrict the scope of the survey and we relatively easily reached consensus on the four dimensions we want to explore – the ‘general experience’ of being supervised (in a phenomenological way); the relationship with the main supervisor; legitimacy or fairness and the punitive content of supervision. But we found it extremely difficult to formulate proper questions. At least I had the impression of a Babylonian confusion which led us back to very basic questions about the nature of supervision, because everybody is necessarily travelling with his or her discipline, methods and domestic understanding of things in his or her luggage (and we could have done with a native speaker).

In all groups and in every comparative research we experience this kind of cross-country running, bumping into obstacles and going in circles – but hey, at least these are hermeneutic circles! Indeed in the end we did delineate a set of questions. I know that other groups make an effort to also describe the process of encircling the question and find a possible solution (or several), so these experiences are valuable in itself. They should be documented, for example for the training school. At the end of our four years we then could have something like a Vademecum (‘Va-de-me-cum’, lat., literally “go with me”), something like a “hitchhiker’s guide to comparative research on offender supervision”.

It could also warn possible users that sometimes doing comparative research and running in those circles is a painful thing. When I came back from one of our COST meetings I met a senior colleague who asked me about my current work. I said something about comparative research which prompted the reaction “O, so you are sure that you know your own stuff well enough?!” Well, I am not always sure. And in addition discussing punishment or supervision with sociologists from Belgium, lawyers from Greece, criminologists from Scotland or psychologists from Serbia may shatter your own beliefs and assumptions and somehow destabilize your scientific self. So why do comparative research in the criminal justice field?

I resort to one of the Mahatmas in this field, Hans-Heinrich Jescheck, who was the first director of the Max-Planck-Institute of Foreign and International Criminal law in Freiburg, Germany. Already in the 1950s he outlined why he thought comparative criminal justice research was important. The Max-Planck-Institute has two sections, one being the Criminal Law Section, one being the Criminology Section. So even if these thoughts relate to legal comparison, he took a socio-legal position and was aware of the necessity to include criminological perspectives. I am referring here to a paper written in 1974 on the comparative perspective in legal reform (criminal procedure, to be precise). He distinguishes four reasons or motives, obviously intertwined, for undertaking comparative research. The first is the need for “pure basic research”, ‘pure’ being a weak translation for the German ‘zweckfrei’ – meaning without immediate use and application. In that way comparative research simply seeks to gain new insights or knowledge (“Erkenntnis”). A later director of the Institute, Albin Eser, used the image of going to a museum (probably we must think of an ethnological museum) – looking at particularly interesting foreign norms or practices as if they were exhibits that attract us. In any case, Jescheck again, we must study law as cultural phenomenon in other countries and in doing so we study social problems the jurisdictions try to solve by applying the law.
A second reason to do it – and now already purpose and utility come into play – is that comparative research supports international cooperation and (this is my favourite!) helps to reduce intellectual arrogance and alleged superiority. It “culminates in carving out the communalities of all laws that, eventually, agree on the idea of justice”. It is interesting that he only looks at the communalities and that he is so optimistic about the common ground or a common good intention. Thirdly, comparative research helps interpreting domestic legislation, which must not only be read having in mind the historical path but usually has already taken in foreign influences. These thoughts can easily be transferred to criminal policies and programmes. Finally, comparative research serves, and is necessary for, legal and cultural progress. According to Jescheck, comparative legal studies may provide a supply of possible solutions (“Lösungsvorrat”) for social problems, already in a handy format – systematically organized and critically evaluated. The question remains whether law reform is always a remedy for social problems, nevertheless this thought again can be transferred to policies and practices. And again he takes a very optimistic perspective (also on the receptiveness of the legislator). To sum up: there is a whole range of good reasons to go on.

O yes, and there are some additional joys of comparative research: Travelling to interesting places; getting to know different cultures; meeting old friends and making new ones; eating, drinking and sometimes dancing with them; being challenged by other surroundings, concepts, languages and group dynamics are only some of them. All in all this helps to keep an open mind, welcoming new ideas …

Reflections on the Liverpool Conference

This post comes from Christine Morgenstern, one of the leaders of our European Policy and Practice Working Group…

Having a criminal record of delivering lengthy papers slightly after the deadline has expired, I go for a quick and short blogpost today. Well, I try…  It should not be too difficult after returning from or first international Offender Supervision in Europe Conference in Liverpool which was truly inspiring. So I’ll write about:

• Words I learnt: I am always keen to deepen my knowledge of the English language and I may have understood now the difference between revocation and recall. I am still unsure with resettlement and reintegration but I know now what a ‘graveyard shift’ is (though none of the sessions felt like one!). My favourite, however, was the K.I.S.S. principle – keep it simple, stupid. Lovely! Are there any motivational posters for scholars with that slogan?
• Feelings I had: There were good vibrations (is that expression still in use? For further references, see: www.thebeachboys.com) throughout the whole event – during the sessions, during formal and informal discussions, coffee and lunch breaks, and Friday night on the dancefloor (although there were some tensions between academics and practitioners – we entered first, but practitioners did better in the end…). This enjoyable atmosphere that made you love your work had to do with academic and personal friendship within the network but in particular with the chair of the Action and also with the host of the event. The mixture of scholars coming from difference disciplines and different countries, practitioners, and – few, but impressive – (ex-) supervisees was great. This does not mean it was all harmony; we still have enough controversies – for example, whether you have to marry a practitioner from another jurisdiction to be truly enabled to do sensible and culturally sensitive comparative research. We also heard from a lot of deeply frustrating developments. Despite being an outsider and of course not having the full picture I cannot really imagine that something good can result from selling the English Probation service to multi-national companies (except more money for their shareholders, perhaps?). Two of our speakers also talked about utterly unfair or useless treatment they have experienced while under supervision – about individuals who treated them inadequately, a problem which will always be there, but also about structural problems that could and should be changed. Which leads me to…
• Insights I gained: There were many. I just want to write about one, because it struck me at least three times during the conference, although the aspect was only mentioned as an aside. It is the question of having a criminal record which is accessible for future employers (or others) for a very long time or forever, even if the person concerned has stopped offending (for example, if I understood correctly, as part of the spent convictions scheme for people who served a prison sentence longer than 2 1/2 years). Examples came from England/Wales, Ireland and the US (for an Australian account see Saliba, www.ejprob.ro/index.pl/national_ian_2013). This of course seriously impedes desistance. My own country, Germany, has a lot of flaws and shortcomings with regard to the treatment of offenders.  But for most offences/sentences, including murder, the conviction will not be disclosed to private employers five years (ten for serious sex offenders) after the completion of the sentence (for other European states see www.ejprob.ro/index.pl/january_2011. Hey Raymond, this may answer your question?!). How on earth can a practice as described during the conference be justified by a state like the UK that at the same time has beautiful (and expensive) programmes to help ex-offenders to resettle in the community?! Why is this legislation/practice not abolished? It would, at no financial cost, make desistance easier for many. Of course I know the political answer. Still this practice should be named and blamed as being hostile towards the ex-offender, hostile towards those who try to help him to desist, and useless, even counterproductive, with regard to the safety of the community. The state in that way – and now you’ll learn a German saying – ‘tears down with his ass what he has built with his hands…’

Words…worth a discussion

Last week in France I passed a beautiful but dilapidated old manor, in front of it a sign ‘Réhabilitation d’un chateau’, with the names of all those responsible: architects, engineers, masonry, plumbers.  So in France buildings (amongst others) can be rehabilitated – which of course immediately made me think of several discussions we had on this word and more generally on terminology, concepts and translations in our field…
The term ‘rehabilitation’ is one marked example of the Babylonian confusion we sometimes find when we discuss offender supervision: The Latin word exists in many of our languages, but does not necessarily stand for the same thing. So if we, in the criminal justice context, translate an English ‘rehabilitation’, we should use ‘réinsertion’ in French and ‘Resozialisierung’ in German. But maybe the correct English word would be ‘reintegration’? Or do we need a ‘social’ in front of all the terms I listed? And is the prefix ‘re-‘ correct or do the offenders we are talking about sometimes rather need a (first) habilitation or socialization? Readers know these terminological problems in their own language from multi-disciplinary discussions. And those who join meetings of the ESC Working Group on Community Sanctions and Measures (particularly when Martine Herzog-Evans and I are attending) – or of any other international group that discusses the subject in a comparative perspective – know that translations and (mis-)understandings give cause for endless discussions.
In our COST Action “Offender Supervision in Europe” the following official languages are represented: Norwegian, Swedish, Lithuanian, English, Danish, German, Dutch, French, Slovak, Hungarian, Romanian, Croatian, Italian, Spanish (got it? this was north to south!). If we count Irish, Catalan, Flemish, Swiss and Austrian German separately, our group is able to communicate in 19 different linguistic idioms. Since we additionally are a multi-disciplinary group – we have criminologists, lawyers, psychologists, social workers and others – we find a huge diversity of languages. By now we know at least that we cannot be too sure about the one and only correct understanding of a certain term (German and French lawyer may sometimes find it easier to understand each other than a German judge and a German social worker). And even if we found a proper translation of course we have to take into account domestic developments: If I want to translate ‘gemeinnützige Arbeit’ from German into English I choose ‘community service’, but is that the same as ‘unpaid work’? Or ‘community payback’? If I choose wrongly this already may be understood as a statement, even if it was just a translation problem…
So far, so banal: Translation problems (as long as they are detected) can even be part of the hermeneutic process; they can enrich discussions and understandings. As we committed ourselves to this COST Action we are quite aware of the problems and we have learned to consider that our colleagues from other countries have to deal with similar factual problems but within other legal and practical frameworks; using other concepts and names (or using the same terms, meaning different things).
Things, however, become even more complex because we have another terminological layer on top of our multi-lingual, multi-disciplinary and multi-cultural problems: We have a certain ’Eurolanguage’ or should I call it ‘EuroEnglish’? Understanding and interpreting this kind of English is one concern for our Working Group 4, European Policy and Practice, because we deal with recommendations and other texts by the Council of Europe and the European Union. The latter has 23 official languages, the CoE only two (English and French, but it accepts Italian, German and Russian as additional working languages). Nevertheless in both institutions the main language for all sorts of communication is English. Typically therefore texts are drafted and discussed in English. Later, all official EU documents – in our case relevant for example the Framework Decision on Probation – are translated into the 23 languages (the yearly budget of the ‘Directorate General Translation’ is 300 million Euros!). The CoE only has to translate into French or English, but aims at disseminating texts as the European Probation Rules or the Recommendation on Community Sanctions as widely as possible. Therefore the Council looks for translation sponsors and some semi-official translations exist, provided for example by Ministries of Justice.
Why is that interesting for us? Because obviously this extra layer, the EU or CoS texts, are an additional source both to create more confusion but also a chance to transport a certain harmonized understanding based on common values. Both – in my view – merits scholarly interest and analysis. The first question is: Are the translations provided correct? The COST group is a body that could check and discuss translations of certain key terms. To give you just one example (Martine certainly agrees): The term ‘desistance’ in the European Probation Rules (No. 57, 76 and in the glossary) in the German version it is translated once with ‘Rückfallprävention’ (prevention of recidivism) and twice with ‘Abwendung von Straftaten’ which is hard to translate and not a term that is used frequently but literally means ‘avoidance of delinquency’. I know that the French translation is equally unfortunate and I wonder how this concept is translated into Italian, Spanish or Hungarian (not sure whether we have translations of the Probation Rules yet…)! But this does not mean that native English speakers have nothing to contribute to that endeavour: They can check whether the (English!) words used in the European texts are those that normally would be used in England/Wales, Scotland or Ireland (I am quite sure there will be significant differences between the English speaking countries).
Sometimes they may find that rather uncommon English terms are employed. The reason may be what I referred to as ‘harmonised understanding based on common values’: The example (and here we have Sonja Snacken as expert for the Council of Europe’s Penal Policy) is ‘social inclusion’ (European Probation Rules, Basic Principle No 1): According to that Principle, probation agencies shall aim to promote the ‘social inclusion’ of offenders – none of the word rehabilitation, reintegration, resettlement, resocialisation, etc., are used here. We therefore need to analyse the linguistic usage both on the level of the European institutions and on the national (translated) level. Is using a certain word (and not another) in the original version a statement of some sort? Does it leave (too much) room for (imcompatible) interpretation in the Member States? In other words, is it culturally sensitive or is it a deliberate ‘constructive ambiguity’? Is it – Martine raised that question — a transplant of certain (Anglo-American?) concepts? Is it even imperialistic? And on the domestic level, is a bad translation just that or is it an attempt to avoid certain consequences?
Of course others have had similar thoughts: With the CoE Recommendations glossaries are provided that explain – in English and French – crucial terms a little further. Also the EU Framework Decision on Probation contains some technical definitions. Apart from these partly useful, partly somewhat self-referential definitions, multi-lingual approaches also exist. Martine, for example, has worked extensively on the terms ‘probation’ and particularly ‘probation officer’ (this analyses will be published soon in Eurovista and will be a worthwhile read!). Several attempts have also been made by Probation Organisations to develop a dictionary for all those that practically have to deal with colleagues and offenders that speak foreign languages. One example is the glossary “Criminal justice in Europe”, a co-production of English, French and German organisations with the assistance of the EU and the Danish Welfare Society. The authors – among them Norman Bishop – wanted to create a glossary which makes it easy to find an adequate translation as well as get quick information on the situation in other countries. The glossary is still online (http://www.ju-lex.com/engl/index.htm) and contains a huge number of entries from the entire criminal justice system in three languages. To give you one example: the search for ‘rehabiliation’ redirects the user to ‘resettlement’, German: ‘Resozialisierung’, French ‘réinsertion’. Per country you find two to three lines of explanation. Some definitions both in English and French that serve comparative purposes are also provided by the European Penological database SPACE II (http://www.unil.ch/wpmu/space). It seems to be a good idea to make more use of these very helpful approaches and to continue and update this work.
We, however, would like to go further, starting slowly with some key words, perhaps finally producing a sort of critical dictionary. Surely we would like to include more languages than the existing ones! Such a dictionary will most certainly have a complicated structure with several columns or entries per keyword, taking into account all the aspects I have mentioned above. Of course this only makes sense with the support of many contributors (and languages!). What do you think? And to start with: What terms would be relevant?

We are Europe (sort of…)

We are Europe… more precisely we are the Working Group on European Policy and Practice of Offender Supervision but since this is a long name, somebody said that she preferred to think of our group as “Europe”. So I somehow felt directly affected when I heard last Friday that the EU was awarded the Nobel Peace Prize. I was not sure, however, how to react. Obviously, I think Europe is interesting and important – but the EU? Peace? What about fortress Europe, the financial crisis, mass unemployment, increasing income inequalities? What about the rest of Europe? And the world? Is this Nobel Prize, as dubbed in a German blog, a “western prize for a western audience”; the EU an achievement “of white men for white men”? The Norwegian Nobel committee justified its decision by stating that “the union and its forerunners have for over six decades contributed to the advancement of peace and reconciliation, democracy and human rights in Europe.” Our colleague Martine Herzog-Evans put it that way: “We older EU countries tend to ‘complain with ease’ as we say in French as we’ve comfortably enjoyed peace and hardly ever notice any more. We should remember and enjoy. This is a very important day.” True, and worth raising glasses… Nevertheless there is no reason to lean back; much has to be done to live up to this prize in the future.

And it has to be done not only by governments or institutions; it has to be done by the EU citizens, by us. Which leads me – finally – to the small contribution we, as European researchers, might be able to make to that process and which we discussed on our first meeting in Brussels two weeks ago. Our working group is concerned with the role of European institutions for offender supervision, as well as with questions of policy transfer. In Brussels, we had WG members from five countries present – Belgium, Italy Malta, Spain and Germany. During the meeting the discussions focused on three main themes: The obvious starting point with regard to the EU level was the Framework Decision 947 of 2008 on the transfer of probation decisions and, to a lesser extent, the FD 829 of 2009 on the transfer of pre-trial supervision measures, because Member States have to transpose them into national legislation and implement them into national practice. The second focus was on the European human rights framework for offender supervision, provided mainly by recommendations by the Council of Europe (European Probation Rules and the European Rules on Community Sanctions and Measures). Thirdly we discussed methods to study the question of policy transfer.

The general idea of the COST activities in the first year to establish an inventory of research only partly works for our WG 4 – in many European countries our topics are simply not covered by research (yet – exceptions are mentioned in our draft reports). We also have (for the moment at least) too few countries represented in the WG to be able to compile something comprehensive. We will, however, try to recruit more people, particularly from the Baltic and CEE countries – please do get in touch if you are interested.

We agreed on concentrating first on the instruments by the Council of Europe. The task is threefold: We need to answer the question if and why it is necessary for national authorities/practice to use them (the legitimacy aspect). We need to take a European view – how do they fit in the general European framework (that means to keep in mind other instruments and policies). And, most important, we must look at how the ideas of the Council of Europe instruments are implemented in national practice.

To provide an in-depth analysis, we will focus on two points: First, the issue of breach (with all connected features: who decides – in theory and in practice – ; what are the consequences – mandatory or not; how are the possibilities of review; procedural guarantees etc.). Second, offender involvement in very general terms (with the question of legal requirements of consent, voluntary co-operation in practice, information etc. – here also the national developments over time are interesting). Secondly, we will provide a follow-up on all research and practice activities connected to the 2008/947 FD; mainly relying on ISTEP (Implementation Support for the Transfer of European Probation Sentences; see http://www.cepprobation.org/uploaded_files/ISTEP-Project-Overview-Letter.pdf) material. The FD obviously is the trigger for the current manifold European activities, we certainly do not want to duplicate these – here we will probably come closest to establishing an inventory of ongoing projects and research relating to the FD on probation. Thirdly – and most difficult – we will deal with the question of policy transfer. Here again, important voices are missing from Baltic and CEE countries that were importing all sorts of normative/legislative concepts and supervision programmes. We were thinking of restricting the question of policy transfer to certain buzzwords (or buzz-concepts) such as RNR (Risk-Need-Responsivity) or CBT (Cognitive Behavioural Therapies). Also, we could concentrate on sex-offender programmes. However, reports should not be restricted if other examples of policy transfer (or transplants) are worth discussing as well.

To come back to my initial thoughts: Our aim is to explore not only common problems but also common European standards of offender supervision – only if we identify such an European view, the intensified collaboration in that field will work. The “European idea” is based on some set of common values, the catalogue of human rights laid down in the European Convention of Human Rights being the most visible. I do not only say that as a notoriously optimistic (naïve?) human rights lawyer, but also because this is what European citizens say (at least those surveyed in the Eurobarometer 69 and 74). Both to the question which values represent best the European Union and to the question which values are the most important for them personally, the most frequent answer was “human rights”. Probably not many of them have thought of the situation and rights of offenders, but we will.