Abstract
The long awaited consultation papers on community sentences and the probation service (summarized in the ‘Research and reports’ section of this edition) were published in March 2012, the latter amidst a background of delays and political in-fighting between the Home Office and Ministry of Justice (Ministry of Justice, 2012a) In an interview with The Guardian, Lord Ramsbotham stated that the review revealed a ‘misunderstanding and misappreciation’ of the criminal justice system warning that it would create a postcode lottery of services for offenders (Ramsbotham, 2012). The overall direction of the consultation papers suggests a further period of uncertainty for the probation service. On the one hand probation is described as the vital glue that holds services together for offenders, whilst at the same time it is suggested that there will be a reduction in the number of trusts and the future possibility of transferring accountability for their administration from the Secretary of State to local authorities or the newly elected Police and Crime Commissioners. Taken together these consultations propose a radical change to the delivery and oversight of community sentences. They further promote the ideologically driven belief that splitting the service and outsourcing lower risk offenders (irrespective of the dynamic nature of such risks) and other interventions will stimulate the market and encourage the private sector to bid for and achieve better results. No sooner had the consultation period closed when it was announced that Serco had been awarded a four-year contract worth £37 million to take over the supervision of those supervised to community payback in the London area (Travis, 2012). The challenges and potential pitfalls of increased competition and marketization will be considered in the next edition of Probation Journal which is entitled ‘Opening up the criminal justice market’ but there are other worrying aspects of the consultation which appear to be based on a number of somewhat dubious assumptions.
Firstly, the consultation documents cite unacceptable reoffending rates as the justification for such sweeping reforms. It would be hard to argue that reoffending rates are currently unacceptably high, with 60 per cent of released prisoners being reconvicted having served under 12 months. However, it seems somewhat perverse to blame the probation service, and use it as an excuse for further reform, for what is essentially a failure of the prison service, especially as this category of prisoner are released without statutory supervision by the probation service. Moreover, according to the Ministry of Justice’s own figures proven reoffending of those individuals receiving community orders in 2008 was 8.3 percentage points lower than for those who had served prison sentences of 12 months or less, even after controlling for differences in terms of offence type, criminal record and other significant characteristics (Ministry of Justice 2012b: 10).
Secondly, whilst the consultation paper Punishment and Reform: Effective Community Sentences (Ministry of Justice, 2012b) does not seek to replace short prison sentences with community penalties it proposes a clear punitive element in every community order and the creation of an intensive punitive community disposal for those on the cusp of custody. Whilst punishment is of course a legitimate and expected response to criminality, by prioritizing the infliction of punishment, the proposals threaten to undermine the balance of sentencing outcomes and the underlying principles of proportionality and fairness in sentencing. The rationale for such a move appears to be based on a perceived lack of confidence in community sentences amongst the general public despite existing research finding little evidence that the public want community sentences to be unproductively harsh (Hough and Roberts, 1999; Maruna and King, 2004). Attempts to persuade people that community sentences can compete with incarceration on the grounds of toughness is an extremely challenging strategy because ‘If punitiveness is the currency, then imprisonment has a higher value’ (McNeill, 2012). Indeed adding punishment purely for the sake of general deterrence and increasing public confidence has shown to have limited positive effects (Criminal Justice Alliance, 2012). Making community orders overly harsh and punitive in a misguided attempt to match the damaging impact of imprisonment ultimately undermines notions of legitimacy, without which compliance and desistance are jeopardized. As Fergus McNeill has noted:
Community punishment makes sense as a way of securing positive [author’s emphasis] payback that benefits communities; it can’t compete with prisons when it comes to imposing penal harm. When community punishment tries to do that, it also undermines its capacity to secure a positive contribution from reforming citizens. (McNeill, 2012).
The third challenge to the approach taken in the consultations is its preoccupation with new (and potentially costly) forms of punishment rather than supporting and fully funding existing community sanctions and interventions which have proved to be effective in reducing reoffending and protecting the public. Within the current sentencing framework the courts already have the power to design a community sentence which is effective, proportionate and appropriate and create a package of requirements based on the needs of the individual. There are now 14 possible requirements that can be used within a community order. Research into their usage suggests that the issue is more about how these are being used rather than a need for additional disposals. Mair and Mills (2009) found a persistent problem with the availability of requirements – especially alcohol and mental health treatment and a surprising lack of knowledge amongst sentencers, even when these requirements were available locally. Intensive probation schemes have a somewhat chequered history going back to the IMPACT research of the 1970s. In the past they have tended to be used more as alternatives to the existing community orders rather than impacting on the use of imprisonment. More recently, the Intensive Alternative to Custody (IAC) community sentence pilots have tentatively suggested more positive outcomes. These were explicitly ‘packaged’ as explicit alternatives to custody. However, they did not include anything that could not have been included within a community order, and their success seems to have depended more on the intensive management and support that was made available to the individual through supervision rather than the specific content of the order or threat of imprisonment in breach proceedings (Humberside Probation Trust, 2012). As Stan Cohen warned in his seminal work Visions of Social Control (Cohen, 1985) it is important that the creation of intensive community punishments does not generate a net-widening effect resulting in less serious offenders being given sentences which are wasteful of limited resources and ineffective at reducing reoffending. Implementing an entirely new order is maybe just as likely to up-tariff as down-tariff the individual in sentencing terms with the concurrent risk of increasing the short term prison population.
The consultation paper further seeks to strengthen community orders through the harnessing of new location monitoring technologies such as GPS (Global Positioning System) and GSM (Global System for Mobile Communications) as a means of monitoring certain requirements in relation to exclusion areas, alcohol abstinence, foreign travel and residence. It is envisaged that tracking through the use of ‘cyber-tags’ would not only enforce restrictive measures but would also be used to develop and reinforce positive behaviour. There is certainly potential for such measures where there is a risk of repeat offending in relation to certain types of crime such as domestic violence or other predatory types of sexual offending, stalking and harassment and it could also be used more frequently during remands. However, ‘current evidence suggests that electronic monitoring has at best a neutral effect of reoffending and there was no significant difference in compliance levels of electronically monitored curfew orders compared to a comparison group serving other community penalties’ (Criminal Justice Alliance, 2012).
One positive aspect of the consultation is that it draws attention to the needs of particular groups but the analysis provided is again somewhat undeveloped and the ‘solutions’ proposed are open to question. The consultation is right to acknowledge the multiplicity of problems often faced by women offenders and the need for supporting specific services for them. However, as Napo has warned; ‘in an attempt to be “meaningfully punitive”, courts may believe that additional requirements are needed in order to satisfy this intent’ (Napo, 2012). Treatment gains can quickly be lost if people are not supported by the provision of auxiliary services such as housing, employment and education opportunities. This point is highlighted in the first article in this edition entitled ‘Vision narratives, hope and transitions in the Antipodes: Early engagement with possibilities of desistance’ by Anne Opie. Drawing on ex-prisoners’ accounts of their transition from imprisonment towards desistance, the author asks how we can capitalize on those moment(s) of insight when the individual is able to begin to conceptualize a future for themselves that repositions them within wider society on their release and does not include criminal behaviour. The author argues that correctional staff clearly have an important role in supporting individuals and helping them to overcome the multifarious obstacles faced in the journey towards desistance and self-actualization. Unfortunately, the accounts of the two prisoners interviewed (from diverse backgrounds) suggest that sometimes the attitudes of some staff were themselves a barrier, treating the individual’s newly-found sense of purpose with cynicism and therefore unwilling to provide the support required, leaving the prisoners angry, rejected, and in a state of despair. Writing from a New Zealand perspective, the author’s call for a radical rethink of criminal justice policies and practices that puts supporting desistance at its centre could also be more forcibly articulated in the consultation documents.
There is little mention in the consultations of the needs of offenders from black and ethnic minority backgrounds despite the danger that this group could be affected disproportionately by the proposals. Allied to this is the highly politicized issue of crime and immigration. The next two articles in this issue highlight the broader structural issues involved in working with black and ethnic minority groups and the need for awareness and the importance and need for sensitivity to cultural norms and values. In ‘Working with South Asian male perpetrators of intimate domestic violence in British Columbia, Canada’, the efficacy of interventions delivered to a group of South Asian men convicted of domestic violence offences is discussed. Like the previous author, Gurjit Thandi highlights the potentially influential role that probation staff can play in bringing about a change in abusive behaviours. However, in the case of South Asian perpetrators, this is less likely to be realized unless there is a move away from culturally neutral practices that fail to recognize and address the impact of cultural influences such as the values placed on family interdependency, marriage, patriarchy and gender role expectations in addition to broader structural factors such as immigration and acculturation.
Similarly, in ‘Counterfeit DVD street sellers: Serious career criminals or individuals in a cycle of exploitation’, Shelly-Anne McDermott provides an insight into an often hidden form of criminal organization. Many of those involved in selling counterfeit DVDs are socially isolated migrants who sometimes find themselves exploited and enticed into acquisitive offending as a result of desperation, poverty and unmanageable debt and because of the lack of welfare support or legitimate employment opportunities available. The author warns that plans to speed up the justice process (and enacted following the riots of 2011) might be detrimental to the way in which probation staff assess the needs of these individuals and may in turn heighten their invisibility, vulnerability and marginalization.
In the final article in this edition, ‘Legal status and positive practice in community order enforcement’, Ralph Cairns provides a road theoretical framework for the legal basis of breach proceedings and the obligations placed on probation trusts in terms of evidential submission and court based practice. The author contends that despite the prominence given to enforcement in contemporary probation practice there remains a need to improve the provision of enforcement training for probation staff. This is not only necessitated by the increasing complexity of the court duty role but also as an important safeguard in an environment where the competence of the probation service is being increasingly questioned and facing competition for its core business from private multinational companies. Whilst the emphasis on greater flexibility in dealing with breaches of community sentences in the consultation documents is welcomed, proposals to introduce measures such as the fixed penalty scheme will no doubt further impact upon the relationship between probation staff and those subject to their supervision.
Each of the articles in this edition in their own way reinforce some of the challenges inherent in the government’s attempts to re-engineer community sentences and probation. Despite the ideologically driven and radical nature of the proposals contained within the two documents, ultimately they are undermined by a lack of political ambition to address the underlying causes of offending, and the misplaced policies which have led to record levels of imprisonment with all the attendant problems and human costs that this undoubtedly brings. Whilst the Justice Secretary may articulate the need to reduce the use and level of imprisonment there is little evidence that this is a shared view within government and the over-riding emphasis in the consultations on punishment and the insistence that the market is the sole or most effective mechanism for progress have further diminished the prospect of a more enlightened approach towards those subject to supervision by the probation service.
As always, the journal welcomes letters, comments or articles in response to any of the issues raised in this edition.