Beyond rhetoric: Emplotting the life course of criminal justice narratives

Criminal justice narratives operate at multiple levels of analysis

Storytelling operates at multiple levels of analysis which means that studies of a single tier of the criminal justice system are unlikely to capture ‘the historical development, social relationships, practices, ideologies, and interests’ that shape criminal justice narratives (Zedner, 2004: 69, cited in Chouliaras, 2014: 250). This is because criminal justice narratives are inherently mobile, moving through different layers of the criminal justice field where they are influenced by a wide range of actors including politicians, policy experts, and practitioners (Lacey et al., 2018; Newburn et al., 2018). Each of these actors has the capacity to ‘create, shape, and interpret penal policy’ (Lacey et al., 2018: 198). The fluidity of narratives is illustrated by the reflexive relationship that exists between narratives, policy and practice, with policy and practice acting as tangible artefacts that can reveal at least in part the more ephemeral narratives underpinning them. The translation of policy to practice is rarely linear, often producing ‘an asymmetry’ between the two that can be explained by the ‘tendency of frontline practitioners to superimpose professional ideologies and practice imperatives over formal policy provisions’ (Newman and Ugwudike, 2014: 203; Tonry, 2001). Illustrating this tendency, Robinson (2002) highlighted disjunctions between risk-oriented discourses as set out within macro-level theories and organisational and practitioner understandings of risk within the probation context. Similarly, McNeill et al. (2009: 423) found evidence in Scotland that narratives of risk were applied in idiosyncratic ways by criminal justice social workers, at times ‘in defence’ of welfarism, again illustrating the resistance of practitioners to macro-level risk discourse.

This highlights the need to distinguish between different kinds of narratives such as institutional narratives (i.e., the stories institutions tell about themselves), the personal narratives of those working in the institutions (i.e., occupational narratives concerned with identity and purpose) and those of third parties interacting with those institutions (e.g., defendants, prisoners, probationers), though of course the lines between these narrative types may be blurred. While institutional narratives have received little empirical scrutiny, there is a growing body of literature on other narrative types. For instance, Kurtz and Upton (2017: 541) examined the role of personal narratives within policing culture in transforming ‘culture to action’ across ‘time and space’. Likewise, Ugelvik and Damsa's (2018) research, which incorporated the voices of those imprisoned in Norwegian ‘crimmigration’ prisons, added a new dimension to our understanding of pains of imprisonment related to a sense of being treated unfairly within an institution perceived as illegitimate.

Taken as a whole, the literature shows that a multi-tiered analysis is required to fully understand the role of criminal justice narratives in policy development and implementation. The stories underpinning policy processes and outcomes operate at different levels, as actors across the criminal justice field help to generate, promote, transform or undermine particular policies (Jones et al., 2014). Accordingly, important influences risk being overlooked if only one level of analysis is studied. Recently, researchers have begun to use ecological models to chart the paths taken by policy and practice – and the narratives that underpin them – through different strata of the criminal justice field, including the macro (socio-political), meso (institutional) and micro (practitioner) levels (see Jones et al., 2014; Healy and McGrath, 2019). Such models illustrate how narratives are shaped by a wide range of actors operating at multiple levels.

There is ample evidence to suggest that micro-level, or ‘street-level actors’, do not passively accept policy imperatives but sometimes resist, reinterpret, comply with, or adapt policies in ways that obey ‘the spirit rather than the letter of the law’ (Tata, 2007: 427). Healy and McGrath (2019), noting work by Cheliotis (2006), explain that discretion within criminal justice practice affords opportunities for resistance and agency. Variations in policy processes and outcomes at different levels of the criminal justice field may thus arise due to the diverse priorities and interests of the various actors involved (Tonry, 2014). As McNeill et al. (2009: 436) assert, criminal justice actors have ‘different histories’ and ‘different sources of capital’, which means that the transformation of policy to practice can be ‘differently paced, configured and experienced, and differently accommodated, resisted and subverted’. To illustrate, Mawby and Worrall (2013: 121) found that probation officers actively crafted their roles in ways that helped them to cope with organisational challenges while also preserving their occupational identities as ‘honourable professionals who make a difference’. Mawby and Worrall (2013) also discovered that stories, myths and folklore play an important role in probation culture, with many officers sharing nostalgic stories about a probation ‘golden age’. These stories served several functions, enabling officers to find meaning in the present, maintain a sense of stability during turbulent times and showcase core occupational values.

Policy change is of course not always a top-down process and can also be spearheaded by frontline practitioners. Bacon's (2022: 536) research on frontline policing provides a useful example of this, finding that police officers prompt change by ‘[challenging] the status quo and transform[ing] cultural knowledge and institutionalised practice’. This is also evident in the Irish context where legislative inertia prompted several judicial innovations; for instance, judges developed the non-statutory practice of supervision during adjournment of penalty whereby a sentencing decision is deferred for a set period to allow the convicted person to show willingness and capacity to comply with a supervision order (see e.g., Healy, 2009). Irish judges also tend to resist legislative attempts to curtail their independence (see e.g., O’Donnell, 2021). It has been suggested that the desire to innovate, and the resistance to external intervention, may be an expression of the core values embedded within judicial culture, namely independence, discretion, impartiality and individualised sentencing (Maguire, 2010; O’Donnell, 2021). These examples highlight the need for multi-layered accounts that capture the real-world narratives that shape policies and practices at specific locations during particular periods of time (Tonry, 2001, 2007).

At the meso-level, organisational and occupational cultures must be accounted for to gain a full appreciation and nuanced understanding of policy and practice narrative development. According to Jones et al. (2014), actors at this level construct and disseminate policy narratives strategically to achieve particular outcomes, often as part of advocacy coalitions which create and share stories that elucidate a particular worldview and set of beliefs. However, as Lynch (1998: 842, cited in Brown, 2017: 461) explains, the ‘contact point’ between a particular institution and the wider criminal justice system can act as a ‘battleground’. Occupational culture clashes are well-documented in the literature and are effectively illustrated by Globokar et al.'s (2019) study of victim advocates who act as mediators between victims and criminal justice professionals. This study revealed that culture clashes frequently arose between advocates and criminal justice professionals due to differing priorities, attitudes, values, professional backgrounds and practices. Cultural differences generated tensions between the professionals, with advocates claiming that criminal justice professionals often questioned the value of their work or disliked being challenged on decisions. Such issues were more pronounced among NGO-affiliated advocates than those employed within criminal justice agencies, suggesting that occupational distance increases the likelihood that disparate voices will be present in policy and practice. Again, evidence such as this highlights the need for multi-level models that capture ‘the splintered nature of governance structures’ (cf. Rubin and Phelps, 2017: 423) and explore how policy and practice narratives shape, and are shaped by, wider structural contexts, organisational settings, advocacy coalitions and individual practitioners.

Lastly, criminal justice narratives are shaped at the macro-level by the society in which they are developed, reflecting Kruse's (2015: 7) view that ‘knowledge is produced— or, more precisely, constructed— within and as part of particular sociocultural contexts… and according to sociocultural norms and ideals’. The relationship between macro-level socio-criminological trends and the multitude of criminal justice actors involved in policymaking can be complex (Garland, 2018). It is important therefore to incorporate macro-, meso- and micro-level narratives into research to capture any gaps between policy and practice while also facilitating consideration of agency. Annison (2018: 309) argues that engagement with specific actors can provide insight into their ‘understandings of pertinent developments’ along with their understandings of the wider contexts, realities and opportunities. Examining criminal justice change at different levels of analysis thus offers an opportunity to examine policymaking as a process and produce a ‘theoretically informed analysis of specific developments in penal change’ (Annison, 2018: 307).

Criminal justice narratives are shaped by multiple and agonistic voices

When studying storytelling, it is important to examine the minutiae of narrative-building, including not only the role of agency but also ‘the crucial impact that apparently minor decisions, unimportant participants, or particular “rules of the game”, can play in specific outcomes’ (Annison, 2018: 303). Numerous and sometimes agonist voices determine which criminal justice narratives become dominant at a particular time, including those of politicians, policymakers, frontline workers, legal professionals, victims, the general public, the media and advocacy workers. The agonistic framework asserts that policy processes and outcomes evolve out of a competition or struggle between actors, each with different levels of power, resources and visions (Goodman et al., 2015). Agonists engage in contests with each other, while coping with their own ‘organizational priorities, policies, and practices’ (Goodman et al., 2015: 329; see also Phelps, 2016). Accordingly, contrasting stories can shape policy processes and outcomes by influencing reforms or complicating the transition to a new policy environment (Phelps, 2016). To illustrate, the legal profession, not often considered in penological research, can operate as agonists, and has been identified as ‘a powerful opposition lobby to authoritarian legislation’ in Ireland (Hamilton, 2016: 456). Hamilton (2016: 456) notes an instance where ‘one senior legal practitioner spoke of the way in which lawyers, like the judiciary, could subvert the intentions of the Oireachtas [the Irish Government] where legislation conflicted with legal culture’. The need to study the impact of legal practitioner voices on criminal justice policy and practice development has also been noted in the international criminological literature, with Lewis (1988, in Newman and Ugwudike, 2014) lamenting the lack of discussion and research on this occupational group.

The important roles played by different actors can also be seen in Kruse's (2015: 148) research which posits that forensic evidence gains a ‘social life’ as it moves through the criminal justice system and concludes that examining this social life ‘makes it possible to see the wide range of expertise that goes into concluding the biography of a piece of forensic evidence’. The interactions between various actors and forensic evidence can generate ‘friction’ due to ‘differences between the justice system's epistemic cultures’ (Kruse, 2015: 109). This is because ‘what is clear to one actor might not be clear to another’ and ‘what is meaningful to one actor might not be meaningful to another’ (Kruse, 2015: 109). The same is true of criminal justice more generally; discourses, policies and practices have social lives that are shaped by multiple and reciprocal interactions between actors in diverse settings. Given this, there is a need to consider the variety of frontline and backstage voices that shape policy and practice through storytelling, not least because agonists can struggle against the hegemonic rationales that underpin dominant policies and practices (see Page et al., 2019; Lerman and Page, 2012; Phelps, 2016; Goodman et al., 2015).

The agonistic approach also encourages the study of other stories often overlooked in criminal justice research, such as those espoused by non-governmental organisations which provide counter-narratives to official rhetoric. A notable example in this regard is the contemporary victim rights movement, which emerged from the feminist and civil rights movements. Wiper and Lewis (2020) document how the movement, which began in the UK and US during the 1960s and 1970s, had a real impact on state responses to victims, raising public and political awareness of the issue, creating therapeutic and prevention services from scratch, and generating feminist-themed theory and research on victimology. However, conflicts also arose between the activists and a hostile state which was reluctant to recognise the need for reform. Again, stories played a vital role with activists challenging dominant victim-blaming narratives with feminist understandings that highlighted the prevalence of violence against women and located the causes of such violence in patriarchal structural arrangements. At the same time, the authors note that certain kinds of stories tend to attract more attention than others; for instance, the recent #MeToo movement, which was inspired by personal accounts of sexual violence shared by women on social media, privileged the stories of white, affluent women (see also, Serisier, 2018). Thus, while outsiders can change or resist policy and practice developments (or a lack thereof), their levels of agency should not be overstated. Indeed, the burgeoning literature on the penal voluntary sector highlights growing concerns around its potential for co-option by the state (see e.g., Tomczak, 2014).

Taken as a whole, this literature shows that a range of narratives shape policy processes and outcomes, including stories told outside the formal criminal justice system. While the role of external actors has been discussed in relation to some parts of the criminal justice system, they are rarely referenced within the general criminological literature (although there are exceptions, see e.g., Lacey et al., 2018; Lacey and Pickard, 2015; Hamilton, 2016). To understand how certain ideas gain popularity within political or policy discourse, Lacey (2016: 44) argues that researchers should analyse not only their structure and form but also the ‘institutional arrangements which provide the framework’, and ‘the interests and power relations which shape their development and implementation’. Criminal justice narratives are complex because multiple actors are involved in their creation, but recognising this complexity can help to explain the multi-faceted and often messy reality of criminal justice processes and outcomes, and the stories told about them. Acknowledging that agonists play a role in criminal justice narrative-building can also aid in the explanation of any disruptions, inconsistencies or divergences between policy and practice (Goodman et al., 2015).

Criminal justice narratives are impacted by vertical influences

Vertical influences on a jurisdiction's criminal justice narratives must also be considered. As Tonry (2001: 530) asserts, the role of international legal actors can exert ‘unceasing pressures’ (for instance in relation to human rights standards) on the direction of discourse, policy and practice. This is particularly evident in the influence of European institutions (see Snacken, 2010; McDermott and Murphy, 2008). While not necessarily agonists per se, the role of the European Union (EU) and the European Court of Human Rights (ECtHR) can restrict the expansion of crime control and risk initiatives at national level, and so may influence narratives and action in different countries (see Pratt and Miao, 2019; Snacken, 2010). The impact of vertical influences can be seen through explorations of the differences between the US and European contexts. For example, the US has been considered ‘notorious’ in its unwillingness to bind itself to international human rights responsibilities (Tonry, 2001: 521). Instead, actors at the macro level in the US have elected to only adopt provisions that are consistent with the US constitution, indicating resistance to external influences on human rights. For example, the US was ‘alone among western countries’ in refusing to sign treaties for an International Criminal Court (Tonry, 2001: 521). In contrast, European countries have exhibited deference to international instruments, employing human rights ‘as a bulwark against criminalization and over-penalization’ (Snacken, 2010: 283). This can be seen, for example, through the collective European abolition of the death penalty and deference to the European Convention on Human Rights and the European Court of Human Rights (Snacken, 2010). Such deference has meant that, while populism can be evident in European countries, attention has simultaneously been afforded to due process and human rights (Tonry, 2001). Yet, despite the obvious impact of vertical influences on narratives, this aspect is often neglected in studies of penology and criminal justice.

In this regard, it should be noted that policies, practices and discourses promoted by supra-national agencies are not necessarily translated wholesale into national arenas. By way of illustration, the EU Victim Rights Directive (2012) imposes significant obligations on member states with regards to improving the experiences of victims within the criminal justice process. However, Dearing and Huxtable's (2021) research, which covered seven EU countries, identified significant resistance among criminal justice professionals to enhancing victim rights, particularly those concerned with increasing victims’ sense of ownership over the crime and participation in the system. The majority of victims surveyed reported dissatisfaction with their criminal justice experiences. Interestingly, the authors concluded that victims’ status within the criminal process is governed less by legislative or procedural provisions and more by the founding narratives of the criminal justice system. Specifically, the philosophies espoused by criminal justice professionals, marked by an attachment to state ownership of conflict and the right to punish, conflicted with the human rights narrative embodied within the Directive. This suggests that vertical influences do not automatically influence practice at national level, as actors filter external initiatives through existing belief systems, using agency to subvert or resist changes that conflict with their worldviews. Changes must also be filtered through national criminal justice fields, including the hegemonic narratives that underpin them which may not always be open to, or capable of accommodating, the proposed approaches.

The role of vertical influences is not straightforward as policy ideas are rarely transferred neatly from one jurisdiction to another. Tonry (2007) critiques as overly simplistic the notion put forward by early theorists that global socio-economic changes could produce similar outcomes in different countries. Instead, he argues that the determinants of penal policy are ‘complex and contingent’ (Tonry, 2007: 38). Criminologists have recently begun to study policy flow between jurisdictions, offering important insights into the process and its role in policy development. In fact, Newburn et al. (2018) argue that the policy flow process is itself a key determinant of criminal justice policies and criticise orthodox accounts for suggesting that policy transfer is influenced primarily by macro-level structural conditions and for implying that policies travel in a linear, wholesale fashion between jurisdictions. Rather than moving through a vacuum, Newburn et al. (2018) posit, policies alter – and are altered by – the topography through which they travel. As a result of their ‘diffuse, fragile and emergent’ nature, policies rarely survive the cross-border journey intact (Newburn et al., 2018: 570). According to this conceptualisation, policies are social constructions, created through interactions between actors operating at different sites and within diverse professional and epistemic communities. Because of this, policy transfer is best understood as a non-linear and multifaceted process, operating through numerous, reciprocal interactions at individual, local, national and global levels. The same is true of the ‘rhetoric, talk, knowledge and symbols’ embedded within policy which it is suggested circulate more readily than policy decisions and actions but are still changed by, and capable of altering, the criminal justice fields through which they travel (Newburn et al., 2018: 575).

Collectively, these examples illustrate that the transfer of discourse, policy and practice between jurisdictions is not necessarily straightforward and cannot be assumed. Studies on the transfer of policy also provide insights into convergences and divergences in crime control policies (Jones and Newburn, 2007). For example, there exists a perception that policy developments in the UK have drawn heavily from the US, due in part to the common language, ideologies and ‘links between think tanks and policy entrepreneurs’ (Jones and Newburn, 2007: 16). However, national criminal justice agents, while not ‘impervious’ to global influences, may also ‘resist and rework transnational policy ideas’ (Jones and Newburn, 2007: 5). National systems are also influenced by the values and actions of individual actors and institutions, contextual factors such as the economic situation, and supranational bodies, including the European Union for example (Jones and Newburn, 2007). Therefore, examinations of policy should encompass regulations, statutes and legislation because these illustrate the ‘actual choices of government’, along with policy instruments such as programmes and attitudes (Bernstein and Cashore, 2000: 70, cited in Jones and Newburn, 2007: 22). Moreover, different communities within countries can embrace differing narratives, with Leverentz (2012: 349) noting that place-specific narratives surrounding crime are important when endeavouring to understand crime policies in different places but concluding ‘we do not know how these broader narratives play out in particular places’.

Vertical influences are thus likely to impact the development of local discourse, policy and practice by generating novel, externally driven considerations that must be taken into account. This brings into sharp focus the dynamic nature of the law, reminding researchers that national policy and practice narratives are subject to external and temporal forces, an important aspect often overlooked in the literature (McCartney, 2012). In light of this, future research should pay greater attention to the role of European and other supra-national institutions as criminal justice actors, the narratives they promote, and their influence on national criminal justice systems (see Ryan and Hamilton, 2016).

Criminal justice narratives are temporal and situational

Contemporary events and local experiences may shape the content or perceived attractiveness of particular criminal justice initiatives (see Goodman et al., 2015). Analyses show that particular nations can experience global criminal justice developments differently due to their local idiosyncrasies, cultures and contexts (see Brangan, 2020). Tonry (2007) posited that cultural differences account for the varied trajectories of criminal justice policy in different places. Elsewhere, he observes that it is ‘Pollyanish’ to ‘hope that the simple attractiveness or effectiveness of an innovation in one place will lead to its emulation elsewhere’ (Tonry, 2001: 527). Indeed, research has found localised complexities, cultural differences and divergences between policy and practice in different countries; for instance, in relation to DNA evidence and databases (see Hindmarsh and Prainsack, 2010). Therefore, it is important to recognise that the social meanings attached to punishment are situationally specific, and can vary between jurisdictions (Brangan, 2020).

Like policy and practice, criminal justice narratives can be shaped by the temporal and situational contexts in which they find themselves. Accordingly, studies of criminal justice narratives at different times could produce different results, reflecting the dominant priorities and concerns of that era. It is important therefore to recognise the salience of specific historical moments when seeking to examine the rationales underpinning criminal justice policy and practice (see also Hamilton and Black, 2019; Barton and Beynon, 2015). To this end, researchers must understand the ‘dilemmas’ (i.e., new ideas and developments) that introduce tension into the landscape, particularly for practitioners, and require resolution either through inclusion, accommodation or abandonment of existing beliefs or traditions (Annison, 2018: 311). Analysis of responses to such dilemmas show that ‘“external” structural changes and “internal” individual understandings’ are fundamentally intertwined and both play a role in the policy change process (Annison, 2018: 310 − 311). Elsewhere, Annison (2022) employed the concept of ‘storylines’ to explore how certain stories achieve dominance in the penal field and operate to bring about policy change. His accompanying analysis of the ‘storyline’ that helped to transform the rehabilitation landscape in England and Wales revealed how a compelling narrative brought together a diverse coalition of policymakers, enabling them to navigate the vagaries of the policymaking process. Actors actively used the storyline of a rehabilitation revolution to justify policy preferences and silence critics, helping the storyline to attain dominance, and ultimately contribute to policy change. Likewise, Robinson (2008) discusses how rehabilitation has had to evolve to maintain its legitimacy in a time of punitiveness, doing so by appealing to hegemonic penal narratives such as the utilitarian narrative, which places the welfare of society above that of offenders. Rehabilitation was thus rebranded to emphasise the benefits of rehabilitation for the public (i.e., reducing reoffending to minimise the risk of harm and further victimisation) rather than the recipient as was the case under the penal welfare model.

The importance of incorporating temporal dimensions into our understanding of criminal justice discourse, policy and practice is also well-established in the Irish context, with evidence showing that the Republic has experienced periods of flux, inertia and animation within the criminal justice field (see O’Donnell, 2005). Within the Irish context, policy development over the years has been shaped by a wide range of factors, including brief commitments to crime control discourse during periods of moral panic; a cognisance of, and commitment to, international responsibilities to bodies such as the EU; distinctive political and judicial cultures that foster agentic action, along with turbulent economic periods that have lowered the perceived attractiveness of cost-intensive criminal justice options (see Healy et al. 2016; Hamilton, 2016; Rogan, 2011; O’Donnell, 2005). Again, narratives play an important role in popularising and embedding specific policy realities. Writing about gun crime in Ireland, Campbell (2010) documents how media and political actors advanced a crisis narrative that framed gun crime as an increasingly serious problem, a national emergency that merited exceptional legislative and policy intervention. While gun crime was rising at that time, it was a long way from the national emergency portrayed in political and media discourse. The mooted responses were rooted in narrow understandings of the causes of crime, with politicians imagining those who committed gun crime as rational actors who could be deterred from offending through the introduction of punitive measures (cf. Garland, 2001). These narratives had real-world consequences, most notably the use of anti-terrorist legislation to deal with those accused of gun crime.

Other studies have shown the impact of local contexts on the development of criminal justice discourse, policy and practice. Although Western justice systems share similarities (Tonry, 1999, cited in Hinds, 2013), research has found that policies often diverge depending on the location, meaning that closer examinations of jurisdictions are required (Tonry, 2007). This is because, according to Tonry (2007; 1999; see also Jones and Newburn, 2007), national political cultures and institutions can play an important role in crime control and penal policy. For example, although the UK and US have served as inspirations for other countries developing DNA databases, variations in discourse, policy and practice can and do occur (see Machado and Costa, 2013). Research from Portugal supports this view, with Machado and Costa (2013: 100) finding that the use of DNA and the DNA database in criminal investigations was ‘grounded in a legal, professional and criminological culture with national and local features and particularities’. Similarly, Hindmarsh (2008) examines core narratives surrounding the use of, and policy pertaining to, forensic DNA in Australia, explaining that Australia adopted a ‘technocratic’ approach. This includes ‘narratives of persuasion’, which were often found in the media and included the voices of the police and of government that served to ‘minimize’ other voices such as those involved in civil liberties work (Hindmarsh, 2008: 269). These narratives played an important role, as legislation had to be developed to facilitate a DNA database (Hindmarsh, 2008: 273). Unfortunately, macro-level theories often do not account for these local nuances, despite Tonry's (2007: 2) observation that ‘the determinants and characteristics of penal policies remain curiously local’.