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 …
Thursday 27 February 2014, lunch time. I leave Brussels and take the plane to Edinburgh to meet my COST friends in Glasgow for another meeting. I was looking forward to it. The COST network has become a vested part of my academic life and it is always a pleasure to meet, discuss and have fun together. Fergus McNeill picked us up in Glasgow and drove us in a Glasgow University minibus to Ross Priory, a fascinating, historic building which dates back to around 1693 and which is located at Loch Lomond.
We were there to discuss a new book project that Gwen Robinson and Fergus have set up. Nine academics from different jurisdictions (Scotland, England & Wales, Northern Ireland, Republic of Ireland, Belgium, Hungary, Spain, the Netherlands and Germany) were united around a dinner and conference table for two evenings and a day. Taking into account that Ross Priory is quite remote from the outside world and that we were the only guests in this venue, there was no escape!
On Friday morning Gwen warmed us up with a presentation of the ’story so far’, explaining the genesis of the book project, revealing the title of the book, which I will not entirely give away here. But the fact that the book title contains ‘Community Punishment’ fuelled immediately debate about the delineation and the definition of our research subject. Can and should ‘community punishment’ replace familiar and widely used terms like ‘probation’, ‘non-custodial measures and sanctions’, ‘alternative sanctions’, ‘offender supervision’, etc…? Will we concentrate on supervisory or also include non-supervisory punishments like fines for example? It was not the first and will not be the last time that we have these conceptual and language discussions in our network, because it is not only a question of translation. Words and concepts express meanings that are culturally sensitive and express ideologies and visions on punishment. Different jurisdictions use different terminologies and in Belgium and Spain, for example, the term community punishment does not even exist officially. The term alternative sanctions and measures is the most established. So, the big question is: where does ‘Community Punishment’ stand for?
This question became immediately linked with another: whether to focus on punishment discourses and practices in the pre-sentence or post-sentencing phase or both? Moreover, several members also suggested including the wide range of new punishment practices outside the field of criminal policy, referring for example to the increasing use of administrative sanctions.
I have always preferred the word ‘punishment’ instead of ‘alternative sanctions and measures’. This last concept is particularly popular with policy makers and practitioners (in any case in Belgium). Judges still talk in terms of bestowing ‘favour’ when they impose a suspension or conditional sentence combined with probation measures, suggesting they are not real punishments. My resistance against the concept ‘alternatives’ is also based on the fact that it maintains imprisonment as the default punishment, at least on a discursive and thus symbolic level. It undermines the punishing aspect that each judicial intervention might have and thus also the credibility of all sentences or interventions that are not directly linked to detention.
Long ago Tony Peters, a Belgian penologist, compared this link with an umbilical cord, which has to be cut in order for us to recognize the autonomous and punishing dimension of these so called ‘alternatives’. They have to be judged on their own merits and peculiarities and be recognized as sanctions on their own. Different forms of supervision, aiming to be rehabilitative can also be punitive or be experienced as intrusive. Therefore I fully agree with the editors of the book in deciding to encourage us to write about community punishment. There are more good reasons to choose this concept, but this will be explained in the book J.
Another discussion that popped up was what has to be understood by ‘community’. Which meaning does community have in late modernity? And which role does the community have to play in the administration of punishment? First of all the community is the location where the convicted persons (a good French word is ‘justitiable’, which expresses that these people are subjected to a judicial intervention) ‘do their time’. Here the community is a kind of a neutral term referring to all places except prison. And again we were confronted with the fact that is still almost impossible to talk about punishment without referring to prison and detention. Christine Morgenstern from Germany proposed the term ‘ambulant’ to refer to all practices that take place outside prison.
Kerstin Svensson from Sweden raised the question of the role of the state and the link with developments in the administration and organisation of supervisory functions in different jurisdictions. Relevant questions that were raised here included: Are there differences between supervisory measures carried out by civil servants, by civil society groups or agencies that are controlled by the Executive. Are the agents of community punishment paid by the state and do these agencies work under the direct control of the state? So who are the delivery organizations? And of course, will other jurisdictions follow the developments of privatisation, which are taking place now in England & Wales?
Ross Priory was an inspiring place, even more so in the evenings. During and after dinner we discussed different alternative or creative ways to communicate the findings of our comparative endeavour to a broader audience at the final conference, which will probably take place in Brussels in Spring 2016. We believe that inviting artists in residence into the Action in its final year could help to creatively express and represent ideas about supervision in all sorts of ways. We could also present our findings in the form of a ‘pecha kucha’ (pronounced as ‘pechacha’); a presentation style in which 20 slides are shown for 20 seconds each (six minutes and 40 seconds in total). We were even thinking of doing a flash mob in a Brussels public space. And why not compose a song on supervision and sing it together? Searching for a good beat Fergus came up with ‘Psycho Killer’ of the Talking Heads. And yes, the song makes sense if we replace Psycho Killer with the word ‘Supervision’ and adjust a few lyrics here and there:
I can’t seem to face up to the facts
Confuse the carceral with the penal act
I can’t see past these prison walls
Don’t see nothing til the Action calls
Supervision qu’est-ce que c’est?
Fa fa fa fa fa fa fa fa fa fa better
Turn turn turn turn this way
Oh ayayayay
We got out hours ago
We’re sadder than you’ll ever know
We feel their eyes on us every day
They’re always watching and won’t go away
Supervision qu’est-ce que c’est?
Fa fa fa fa fa fa fa fa better
Turn turn turn turn this way
Oh ayayayay
You start a conversation, you can’t even finish it
You’re talking a lot, but you’re not saying anything
When I have nothing to say, my lips are sealed
Say something once, why say it again?
Ce que j’ai fais, ce soir la
Ce que j’ai fais, ce soir la
Realisant, mon espoir
Je me lance, vers la gloire
Okay?
Ayayayayayay
We are vain and we are blind
I hate people when they’re not polite
My suggestion was to invite David Byrne to the conference and ask him to sing this for and with us. Dreaming is allowed since, after all, nothing venured, nothing gained!
Kristel Beyens, 3 March 2014
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:
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:
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:
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:
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?
As you can see from the phot0 below, we’re delighted to announce that our first book (which shares its title with the network) has been published by Palgrave. It can be ordered online here: http://www.palgrave.com/products/title.aspx?pid=711238
This book reports the findings from a surveyundertaken during the first year of our network which now spans twenty countries. As such, it provides the first comprehensive review of research on offender supervision in Europe, opening up an important new field of enquiry for comparative social science, and offering the prospects of better informed democratic deliberation about key challenges facing contemporary justice systems, policymakers and practitioners, and the societies they seek to serve.
Thanks to the generosity of the COST scheme, we have been able to purchase a number of copies, and also can cover the costs of postage and packing. Our Management Committee has agreed that the priority in receiving free copies of the book should go to probation services and practitioners and to postgraduate and early stage researchers (especially but not exclusively in European countries where such services, institutions and people are most short of material resources). If you’d like to ask for a copy, all you need to do is send the following details to p.mcguinness.1@research.gla.ac.uk
Happy Christmas!
The Bratislava meeting was an opportunity for the Experiencing Supervision Working Group to review what has been done so far and look for a creative way of doing comparative work in the coming years.
Based on our literature review we noted that most of the methodologies employed in assessing the experiences of those under supervision are mostly narrative ones: interviews, questionnaires and so on. Although these tools can produce valuable knowledge about how different people perceive and interpret their experience they cannot capture aspects like context, structure and so on. Therefore, our group started to think of some alternative ways to grasp a more comprehensive image of supervision from the recipients point of view.
One way to proceed was, as suggested by Reuben Miller, an ethnographic approach. In his presentation Reuben emphasized the value of ethnography in capturing the interaction between individuals and social/penal/private institutions.
Another approach was suggested by our colleague Wendy Fitzgibbon. In her presentation, Wendy made a very strong case for the idea that ‘a picture is worth a thousand words’ (Brisbane, 1911). By visualizing a social situation the researcher together with the offender can construct and re-construct the feelings, the thoughts, the decisions and so on associated with that particular picture. Numerous options were discussed like:
The decision of the group was to explore these idea further and come up with more concrete thoughts of how we can use this method in the comparative research. Wendy together with Lol will try to do this before the next meeting in Malta.
Linked to these ideas, another option was suggested – ways of collecting accounts of ‘A day on supervision’. What if we ask people under supervision in different places around Europe to record and describe the experienc of the same day in the calender? What would this method produce? What day? Who exactly should we ask? We noticed that experience is influenced by a number of factors. Shall we look only at those who have an interaction with their supervisor that day? Shall we aim at collect data from both supervised and supervisor? These are only a few questions that were debated in Bratislava. Fergus agreed to liaise with the other working groups and analyze the possibility of producing astudy of ‘one day on supervision’ as common enterprise across the working groups, taking more perspectives into account.
Another way to enhance the comparability of experiences is to ask the same questions to supervisees from different jurisdictions. This was the starting point for the idea of developing an European ‘barometer’ on experiencing supervision. In my presentation I introduced the five dimensions that might be the skeleton of the future tool: supervision as a general experience, supervision as a helpful experience, supervision as a human service experience, supervision as punishment and supervision as a rehabilitative experience. In developing these dimensions into questions European probation rules and the what works literature could be incorporated.
Different issues were discussed in connection to the ethics and the use of such an instrument. What if the countries will use this tool to pursue their political or ideological agenda? What if they will use it to scale probation services?
In the end it was agreed that together with some colleagues I will try to develop the tool further more and test it in a few jurisdictions. A new application might be needed to support a full development of such a tool.
The presence of our colleagues from WG 4 stimulated a lot all the discussions and we are looking forward to continue this format in the future.
Ioan Durnescu (Co-leader of WG 1 – Experiencing Supervision)
This post comes from Gwen Robinson, co-leader of the Working Group on Practising Supervision….
In our first year, Working Group 3 (Practising Supervision) attracted members from 16 countries and the focus of our work was the completion of an overview of empirical research on the practice(s) of offender supervision in those jurisdictions. The culmination of that work was a chapter which will appear in the collection Offender Supervision in Europe. The chapter was written by myself and Kerstin Svensson, along with 19 associate authors who, in close cooperation, produced thorough and thoughtful reviews of research in their own jurisdictions. Kerstin and I are immensely proud of the work of our group in its first year, and have had the pleasure of meeting and working with our many new colleagues. The picture below was taken at the end of the meeting of our Working Group in Bratislava, which took place over two half-days on 25-26 October 2013. The picture shows 16 of us, representing 12 jursidictions, and I think it is a good illustration of the warm relationships that have developed within the group, and which doubtless facilitate our effectiveness as a research team with a shared mission.
Working Group 3: Practising Supervision
So, what is our mission in the second year of our work? In common with the other Working Groups within the Action, we are now turning our attention to the tricky but fascinating business of comparison, with a focus on methodological discussions. Prior to the Bratislava meeting, Kerstin and I proposed that our group might focus its discussions on some areas of practice that could be said to be universal – i.e. common across all jurisdictions, and therefore (potentially) viable topics for comparative research. As Kerstin put it, we have sought similarities as our starting point. In setting the agenda for Year 2 we were also mindful of one of the key findings of our review of research in Year 1: namely, that relatively little attention has been paid by researchers to the ‘everyday’ of offender supervision practice. Far more attention has been devoted to examining discrete processes, such as risk assessment and the writing of pre-sentence reports (to give just 2 examples). Our topics for discussion on the first day in Bratislava, then, were ‘the working alliance’ (between offender and supervisor) and ‘a day in the life’ of offender supervision, and we heard presentations from Andrea Donker (The Netherlands) on the first topic, and Kerstin Svensson (Sweden) and Anne Worrall (England & Wales) on the second.
On the second day, our discussions began to move firmly in the direction of exploring methodological issues, and we split into three sub-groups to consider the potential of three approaches – observation, practice diaries and visual methods – to studying aspects of the ‘everyday’ of offender supervision. In different ways, each of the sub-groups sought to think about how to expose aspects of practice which are normally hidden from view. This is a topic which chimes with some work I have been doing recently and which I elaborated in a paper at the European Society of Criminology conference in Budapest in September. This paper set out to examine and explain the relative neglect of community sanctions and measures in the ‘punishment and society’ literature, and one of its arguments concerned the relative invisibility of this part of the penal field – both literally and in the public imagination – especially when compared to prisons and imprisonment. I noted that a Google Images search for terms like ‘probation’ simply tends to confirm the lack of iconography in this area: what images there are tend to depict people doing what is presumably unpaid work in the community; or else two people sitting on either side of a desk , apparently engaged in discussion. Quite frankly, they could be just about anyone, discussing anything. These are far from memorable images, and highly unlikely to capture the public imagination. They seem to confirm Mike Nellis’s recent observation that “probation…is not very photogenic [and] the great majority of people have no source of information about what probation does” (2012).
With this in mind, our sub-group on visual methods has made plans to pilot a method which will involve asking practitioners to capture aspects of their practice and working environment using photography. We want to explore the ways in which practitioners, given the opportunity, would choose to depict and represent their work, and to explore what the images they produce might tell us about what is the same, as well as what is different, from workers’ perspectives, between jurisdictions.
With this project in mind, I spoke this week to a friend who works as a Probation Service Officer in a busy office in an English city. I outlined briefly our proposal, and was encouraged by his enthusiastic response to the idea of being one of a few of the ‘image-makers’ in our pilot study. In fact, he seemed eager to get started straight away, and was positive about the idea of finding one or two other probation workers to ‘have a go’. From my perspective, this is wonderful and exciting (though we can’t proceed until I have obtained ethical approval from my University). My friend is a very creative person and will, I think, enjoy producing images of his work. I also hope he will enjoy the small opportunity this project will offer to exercise some control and make choices in his working environment. Because at the present time, all probation workers in England & Wales are waiting for someone else to decide their future within the new structures for probation work devised by the Coalition Government’s Transforming Rehabilitation programme. Early next year, the 10,000 or so probation workers in England & Wales will learn whether they will be working in the newly constituted National Probation Service (principally working in the courts, conducting risk assessments and managing high risk offenders), or one of 21 new ‘Community Rehabilitation Companies’ which will be formed to take over around 70% of the work currently done by the 35 Probation Trusts with low- and medium-risk offenders (for further information about this, see: http://www.justice.gov.uk/downloads/rehab-prog/competition/target-operating-model.pdf). This is by far the most radical ‘reform’ of probation in its 101 year history, and a difficult time to be a probation worker in England & Wales. Whether we will, in our small pilot project, see visual evidence of this radical restructuring of probation work, and its impact on probation workers, remains to be seen.
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?
This guest post comes for Louise Brangan, a doctoral researcher at the University of Edinburgh. It is based on a presentation she delivered at an ESRC funded seminar on ‘Devolution and Criminal Justice’ at Queen’s University Belfast on 13th September 2013.
The benefits of comparative criminal justice research are plentiful. The contrasts created by comparative study often highlight taken-for-granted values and can illuminate specific practices or understandings that may have previously gone unremarked. Moreover, it can help us account for similarity and difference in penal practice. The best comparative criminal justice, however, is founded on specificity – what exactly are we comparing? This post is a brief overview of a blueprint for comparative work which I am employing for the study of penal politics in Ireland and Scotland. However, the basic features would be easily transferred to most areas of penal practice.
When exploring occupational sites of penal power, we need to first conceptualise these places for the process of comparative research. Firstly, like all occupations, penal practice is constrained by official rules, demands and boundaries. These institutional contours are important characteristics which inform the operation of penality. Secondly, institutions are operated and animated by people. These practitioners operate within a collective institutional culture which shapes how issues of penality are understood. Consequently, we need to look both at the institutional and administrative frameworks and at their inhabitant agents and how they understand and mobilise the practice of penality. History is the third dimension of this comparative framework. The past is ever present, it shapes the modes in which people work and think today and comparative research must attend to historical legacies in each context.
Institutions
Institutions provide the conceptual framework for this comparative approach. This draws attention to how penal practice is organised, charting the specific institutions which shape and direct penal practice and practitioners. Exploring institutions requires a focus on the rules – those characteristics that formally shape any working sphere. Institutions and their features matter because they provide the rules of the game, they are very concrete regulations which outline expectations. Each institution has a stated set of standard expectations; defining what actors are obliged to do, formally shaping their workloads, day-to-day routines and habits. They are the very concrete frameworks which outline the procedures for penal agents and the demands of their work. These institutional channels also provide paths for action, inaction and interaction. Elucidating how they differ between jurisdictions is an important first step in comparatively reviewing distinct patterns in penal practice.
The finer detail and dimensions of this institutional framework is similar to David Garland’s recent presentation on the penal state outlined by Fergus in a recent post so I won’t rehash it here. Nonetheless, it is important to stress the need to map the sites of offender supervision within the wider penal-institutional topography. What other institutions or bodies are they connected to? To what agencies or branches of government are they responsible? If there are number of agencies involved in offender supervision then the next step is to map the dispersal of power between them.
Agency and Culture
If we have comparatively mapped the institutions which inform penal practice, we know where it is situated within the broader relations of the institutions of penal power and we can see how this varies from one context to the next. The next comparative step we need to take is to fill these institutions with the dynamism of agency, examining the cultural currents that exist inside these criminal justice occupational sites. In attending to culture and agency we are comparatively assessing the embedded mores, values, beliefs, penal sensibilities and fears of penal actros — all of which form a sort of shared world view, or institutional ethos.
Employing interviewing and ethnography as a methodological approach allows us to speak to people and to observe their routines – allowing us to unravel the networks of meaning and capture the texture of values and beliefs which are the enduring and constitutive sensibilities which shape how issues of penality are understood.
One important point should be added here. Within this framework there is room for happenstance; actors are not cultural or institutional automatons. Both chance events and human agency (meaning the power to interpret values differently or to approach the rules of the game in a new way) can be vital sources of change in penal practice and not factors that should be sidelined. The vagaries of events and of human action within these sites of penal practice must be part of the explanation of how the routines of penal practice are informed.
This project is about comparatively creating a rich sense of place – exploring the subjective orientations of actors within the institutional sites in which they operate. This allows us to better understand ‘penality-in-practice’ (McNeil et al 2009:420). Top-down changes in policy rationales are not neatly grafted onto the criminal justice cultures below the political arena. The perceived import of policy in the minds of practitioners is mediated through the values and perceptions of agents and the institutional rules which bind them. Variations in the institutional composition and the subjective orientations of penal agents can illuminate how and why policy changes are operationalized, assimilated or even resisted in divergent ways across various sites of penal practice.
Historical
A comparative project such as this must also confront issues of historical legacy and path dependency. To understand the variation in characteristics of penal practice between jurisdictions we need to review their distinct histories and antecedents. Understanding the present requires an excavation of both the institutional architecture of the past and the ideational tones of the culture therein, tracking how they have evolved. These historical preconditions of practice have left a legacy which shapes current action and understanding. This has methodological repercussions, creating a need for oral histographies within the research tool kit. Along with looking at those who presently work in criminal justice arenas, we also must encourage those who worked within these sites to recall and reflect upon their work.
Conclusion
While this post is something of a whistle-stop tour of this comparative approach, hopefully it indicates a road map for comparative criminal justice research which can be conceptual, empirically rigorous and historically grounded. This may seem daunting as this comparative approach has depth, bringing us inside the sites of penal practice and connecting these to the broader institutional structures of penal power. However, exploring the variation in cultural currents and institutional context of penal practice and the historical trajectories that underpin them can yield rich new insights into how and why penal practice operates in distinct and diverse ways between and across jurisdictions.
References
McNeil, F; Burns, N, Halliday, S; Hutton, N and Tata, C (2009) Risk, responsibility and reconfiguration – Penal adaptation and misadaptation, in Punishment and Society, Vol 11(4): 419-422
Those of us who attended the European Society of Criminology conference in Budapest last week had the pleasure of hearing Prof David Garland’s (of NYU and Edinburgh) plenary address on ‘Cultures of Control and Penal States’. Since his argument seems so important for the next (comparative) phase of our work, I thought I’d offer this brief summary of it.
Garland’s central argument was that in seeking to understand and explain historical and contemporary shifts in penal systems, policies and practices, we need to focus more on the ways in which political mechanisms and institutions (penal states) translate social and cultural forces into particular penal outcomes. Though he has done as much as anyone (in his 2001 book ‘The Culture of Control’) to elaborate these broader social and cultural currents, his more recent work (‘Peculiar Institution’) on the death penalty in the USA has convinced him that a closer reading of political mechanisms and institutions is essential in making sense of developments within states and comparisons between states. He suggests we need to escape our ‘sociological bias’ — looking for deep background causes — and to study proximate causes too. Penal policy and practice, he argues, is ‘always and everywhere a deployment of state power’; one that translates and moderates social and cultural forces.
So how does the deployment of state power differ in different states and what exactly are the relationships between the state itself and the penal state? What does the penal state mean? For Garland (implicitly in contrast to Loic Wacquant’s use of the term), the term ‘the penal state’ it is not critical or evaluative, it is descriptive. It refers to the governmental authorities that make penal rules. It refers to penal governance and leadership rather than to the penal apparatus. The first is the penal state; that latter is penality itself. The penal state ‘refers to those aspects of the modern state that make penal law and direct the power to punish’. As such it involves elements of the Executive, Parliament and the Judiciary, as well as to the leadership of criminal justice agencies.
Garland went on to explain five key dimensions by which penal states might vary:
1. State autonomy: refers to the extent to which the state is independent of social forces refracted through the institutions of civil society or, conversely, to what extent social forces dictate state conduct.
2. Internal autonomy: refers to the relative indepenence of the penal state within the state itself and thus to its degree of independence from other state institutions. In other words, it concerns the extent to which penal officials themselves have the power to shape penal outcomes.
3. Control: Different nations allocate the power to punish differently — at the national, regional or local level – and sometimes share this power in significant ways with others through transnational institutions (in our case consider the role of EU and the Council of Europe, as well as the European Court for Human Rights). Control is also distributed differently across the penal process: different actors compete for control (prosecutors, judges, prison officials, probation services, public/private partnerships). These distributions of power change over time. Here, Garland invoked Foucault’s ‘declaration of carceral independence’ refering to the power of officials to shape the contours of punishment. But he argued that, more recently, the state has sought to take back these powers, at least in some jurisdictions.
4. Modes of power: refers to quantitative and qualitative aspects of penal power; to how much power is exercised but also to the ways in which it is exercised. Inevitably this also involves modes of knowledge expressed in how penal actors think about penal objectives, techniques and practices. These modes of power have both negative and positive dimensions; they involve both incapacitating or capacity-building forms of penal power.
5. Power resources: refers to the extent to which a penal state has capacity. This is not just about the scale of the available infrastructure (i.e. numbers of prison places or probation officers) but all sorts of systems capacity — institutional, professional and academic. It speaks not just to economic or physical capital, but also to the cultural capital represented in knowledge, research and evidence. In this respect, he noted that negative (penal) power is easier to operationalise, not least because it can operate in relative isolation; by contrast, positive (capacity-building) power requires coordination with social and economic forces outside penality.
Garland’s provisional conclusion (this being a work in progress) was that the penal state is not determinative of the nature or operation of penality on its own; but that it helps to explain how and why in different places we find different penal responses to broader social and cultural currents.
Those of us involved in the Action who talked about this afterwards immediately saw the usefulness of this as a framework that we might develop and apply in the next stages of our work. As a network of 21 countries (since Serbia has just joined!), we have a unique opportunity not just to elaborate the contours of the penal states concerned, but also to ensure that supervision features as much in the substance of these sorts of comparative analyses as imprisonment. We are also well placed to explore the spaces between the penal state and penality itself (for example, considering the relative autonomy of practitioners within the penal state), and to examine the ways in which multi-level governance and policy and practice transfer blur the boundaries of the penal state and/or suggest the development of a penal sub-states and penal super-states.
This post is a slightly revised version of a paper on Probation and Social Solidarity[1] that I have just present to the ESC Working Group on Community Sanctions at the European Criminology Conference. A few people asked to read it, and since I’d value comments on it as a ‘work in progress’, I thought I’d post it here. Be warned, it is pretty dense… as a result of being severely edited for a very short presentation slot.
Introduction
In the paper we’ve just heard, Gwen (Robinson) has made the case that ‘Punishment and Society’ scholarship has been negligent in failing to assess the meaning and significance of probation as a penal institution. But equally, we might argue that probation scholarship itself has often been under-theorised. In those few cases where probation has been the empirical object of theoretical work, it has tended to draw on the ideas of Foucault or, more rarely, Marx. We might crudely summarise the results as converging in an analysis which sees probation primarily as a disciplinary technology that has been directed at the urban poor, at least where and when social and economic conditions lend it greater appeal than imprisonment.
What is missing in these accounts – and much more apparent in historical and contemporary debates about imprisonment — is an analysis of the significance of probation’s cultural contexts, forms and functions. This paper aims to begin to address these questions through a re-reading of Durkheim’s work on social solidarity and on penal evolution, stimulated in part by its recent re-appraisal by David Garland (2013).
Punishment and social solidarity
Durkheim argued that social solidarity depends on the unity of moral beliefs in social groups (Giddens, 1978). Punishment is a passionate collective reaction to violations of these core shared beliefs; its rituals are important as a means of allowing us to communicate, reaffirm and reinforce them. As Garland (2013: 25) puts it, offending shocks ‘healthy’ (i.e. well-socialized) consciences into punishment as a reaction:
‘The essence of punishment, [Durkheim] claims, is irrational, unthinking emotion driven by outrage at the violation of sacred values or else by sympathy for fellow individuals and their sufferings’ (Garland, 2013: 25).
In fact, these different two sources of outrage (religious and human) – though often intertwined – partly reflect the two different forms of social solidarity that Durkheim distinguishes. In simpler societies, solidarity is ‘mechanical’; in more complex societies it is ‘organic’. In the first, punishment expresses a collective response to the violation of the sacred; in the second, it expresses collective sympathy for the suffering of a fellow human individual.
Mechanical solidarity is characteristic of societies that are structured and dominated by the needs and interests of fairly small collectives whose unity of moral belief is religious in type: offending violates those sacred values to which every individual is subordinated. Law and sanctions here are primarily repressive rather than restitutive; their function is to express and to reinforce the conscience collective.
The division of labour in modern societies occasions the transition to more organic forms of social solidarity. Cohesion around shared values is much less apparent in these ‘scaled-up’ social groupings. Although repressive law and sanctions continue to exist and to regulate an underpinning code, the development of increased social diversity and the necessity of complex inter-group cooperation require that code to be based on moral individualism, not on collective values imposed by any particular group. For this reason, restitutive law and sanctions develops apace to regulate intra- and inter-group cooperation in ways which rely less on repression and more on restoration to health of the social organism.
Garland’s (2013: 36) recent re-analysis of these ideas makes two important points. Firstly, he insists on a reading of Durkheim which stresses that ‘the social processes of punishment, insofar as they are social, presuppose solidarity as well as reinforce it’. In other words, punishment is both a project solidarity-building and a product of it. Secondly, he argues that, in Durkheim’s later discussions of organic solidarity, he relies less on notions of interdependence (linked to the division of labour) and more on ‘the cult of the individual as an overarching moral framework’ (Garland, 2013: 36).
Penal evolution
Though Durkheim does not refer directly to the two forms of solidarity in his famous essay Two Laws of Penal Evolution, that essay does serve to elaborate them. The first (‘quantitative’) law is that:
‘The intensity of punishment is the greater the more closely societies approximate to a less developed type – and the more the central power assumes an absolute character’. (Durkheim, 1973: 285)
The forms of solidarity speak to the first of these two forces for penal moderation. However, Durkheim is careful to distinguish this from a second moderating force; i.e. the diminution of the absolute power of the sovereign. Perhaps most importantly, he is sensitive to the possibility that the relationships between these two forces – social solidarity and political authority — are contingent and need not always be aligned.
In his more prescriptive writings, Durkheim argued for a conception of the state as the ‘social brain’. Its job is to absorb the information delivered by the social senses; to interpret, to reflect, to moderate, to regulate, to guide and to inform – but not to act. Extending the metaphor, the organs of the social body (and its hands, which do the work) are to be found not in the state itself but in wider ‘political society’. In Professional Ethics and Civic Morals (1958), Durkheim argued that a well-functioning polity depended on a kind of balance of power between the state, civic associations and the citizen. The citizen had rights and reciprocal duties. The state had to hold in check the potentially repressive power of civic associations and to balance their competing interests. But equally, the modern state was far too remote from the individual to act as an effective agent of socialization and moral regulation – and, Durkheim argued, it would become repressive should it seek to do so. Since the increasing geographical and social mobility of modern societies meant that the family’s capacity to sustain moralizing functions was also limited, it followed that only civic associations could sustain the professional ethics and civic morals on which a well-functioning society relied. We will return to this ‘balance of powers’ later.
Durkheim’s second (‘qualitative’) law is stated thus:
‘Deprivations of liberty, and of liberty alone, varying in time according to the seriousness of the crime, tend to become more and more the normal means of social control’ (Durkheim, 1973: 294).
His explanation of this development in the form or style of punishment relies heavily on his account of the rise of moral individualism. In this regard, he distinguishes between ‘religious’ and ‘human’ criminality; the former being against the collective (or their deity), the latter against the individual. To the extent that offending ceased to violate the sacred and became an offence of one citizen against another, forms of brutalizing punishment were less likely to be invoked. With the rise of individualism, the collective sensibilities of the audience of such punishments shifted; while we retained a sense of outrage now rooted in fellow-feeling for the individual victim, we could not so easily yield to our punitive passions by feasting on the spectacle of the ritualized abuse of the offender; s/he had become a moral individual too.
The rise of the prison is also accounted for, in part, because of its usefulness as a technological (or architectural) fix for a social problem whose contours were changing. A new way had to be found of (literally) holding the individual to account. Durkheim recognizes that this ‘holding’ originally developed as a prelude to punishment, rather than as a punishment in its own right. However, he argues that, in this case, the social function followed the new penal form; once the pains of (pre-trial) imprisonment became apparent, its utility as a punishment became established. And as it came progressively to be defined by its essential property – the deprivation of liberty — its punitive character became less and less associated with the particular conditions or peculiar hardships of confinement. So, it was not merely that the prison displaced the gallows (and the stocks); it was also that the penal severity of the prison diminished over time.
However, Durkheim’s essay ends, not with a celebration of the relentless and civilizing progress of penal moderation, but with recognition that penal law was in a state of crisis. By the turn of the 20th century he had identified a failure of modern institutions of punishment to find more adaptive ways of fulfilling their functions in terms of building and reinforcing social solidarity, but in a manner consistent with modern moral sensibilities. Moreover, he foresaw the expansionism implicit in coming to understand and define ‘human’ (as opposed to religious) crimes in ever-broader ways.
Probation, solidarity and penal evolution
There is too little time today to develop a Durkheimian analysis of probation, but I can at least begin to suggest what some of its preoccupations might be. First and foremost, such an analysis would be less concerned with what probation does to offenders (and with what effects), and more concerned with what probation communicates on behalf of and to society; in other words with how it performs its penal function. More specifically, three inter-related sets of questions suggest themselves:
With respect to solidarity, the progenitors of probation were typically committed not just to moral individualism but to building and working through the types of civic associations prototypical of organic solidarity. Thus penal reformers, police court missionaries and others sought to rescue offenders from de-moralizing experiences of imprisonment and to build or restore their character through example, temperance and/or religious instruction. The available architecture was the legal order itself. In many states, the order represented a suspension of punishment and the establishment of a quasi-civil contract between the court and the offender. It was, in essence, a promise of good behaviour and of restitution or repair – even if that promise was directed principally at the offender him or herself. At the same time, the promise was subject to surveillance; and more repressive sanctions loomed for promise-breakers.
A little later, the pioneers of more professionalized forms of probation developed new technologies: the same legal architecture and supervisory relationship was now to be furnished with social diagnosis and social casework. Just as the prison began as a place of pre-trial detention that came to be seen as ‘punishing’ and then as a means of punishing, so the technique of social enquiry began as a mode of investigation and classification but evolved into a form of and rationale for intervention with scientifically informed reformative potential (Garland, 1985, Vanstone, 2004, McNeill, 2005)[2].
Probation’s position in the mid-20th century as an expression of a wider current of (penal) welfarism seems intelligible both as a product of organic solidarity and as a solidarity-building project. What probation ‘said’ in this era was that society needed to enact a commitment to an inclusive (if somewhat over-bearing) vision of organic solidarity; one which insisted that the delinquent acquire the motivation and capacity to live up to his or her civic obligations, but needed and deserved help to do so. Where the family had failed to foster such sensibilities, probation would step in and connect or reconnect the delinquent to pro-social civic associations (Mahood, 1991)[3].
From a Durkheimian perspective, the professionalization of probation need not have been a problem in itself; indeed it might have served to clarify its values and its message – and to sharpen its moral performance. But the conjunction between the professionalization of probation and its progressive colonization by the state certainly would have alarmed him as state intrusion into ‘governing the soul’ (Rose 1980). For Durhkeim as for Foucault (or even Althusser), that might have seemed a new and insidious form of absolutism. Probation thus shifted from its locus as a professional office of the courts (or sometimes of local authorities), rooted it in what might be conceived as institutions of civic society (or at least as institutions independent of the executive). It has become instead, at least in some places, a penal ‘service’ run by the state, or even worse (in Durkheim’s terms) a service commissioned by the state from an amoral market; a shift which undermines its moral status and changes its moral message.
Where this convergence of professionalization and centralization has occurred, it has allowed the redirection of late-modern probation from being a project of building and reinforcing organic solidarity, to being a project of managing threats to mechanical solidarity (at least from those its state sponsors construct as outsiders). As with many other aspects of state-owned or state-commissioned justice and security, what probation says now is that we are in danger, and that we need the state – and the market — to order and organize our protection.
Returning, in closing, to the question of probation and solidarity, this re-reading of Durkheim makes clear that probation’s future development – like punishment’s — will depend less on evidence of its ‘effectiveness’ or ‘quality’ and more on shifting forms of social organization; on their expression in terms of changing moral sensibilities; and on the changing dynamics of political or governmental authority[4].
The important practical question is whether, how and under which social and political conditions probation might resist or moderate these forces. To begin to answer it, we need to examine much closely, in a range of different contexts (historical and geographical), what it is that probation has communicated (or failed to communicate) about social solidarity, to whom and for whom, and under what forms of political authority?
[1] A paper presented at the European Criminology Conference, Budapest, 4-7th September 2013. I am very grateful to my colleague Matt Dawson for his advice and assistance in interpreting Durkheim for the purposes of this paper.
[2] More recent technological innovations — whether risk assessment tools or offending behaviour programmes or electronic monitoring — need to be analysed in the same way – not for their putative instrumental utility, but for their social meanings.
[3] A little later, community service emerged as a different expression of the same message: supported restitution or reparation would act as the socializing, moralizing discipline, but the means of repair would be unpaid work itself rather than the labour of personal transformation.
[4] Though we have said too little about it, Durkheim’s rarely acknowledged recognition of the potential for class conflict within organic solidarity (at least where laissez faire capitalism sets the interests of the rich and poor so clearly at odds) also anticipated the exclusionary dynamics of complex, late-modern societies, and of the rising inequalities and struggles for political capacity that characterize them, under the pressures of globalization.
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