Wednesday, 15 February 2012

Punish Less : Understand More

Every now and then I come across a post on other blogs that particularly grabs my attention. In this instance it wasn't so much what the blogger said, as much as the resulting and mostly ill-tempered comment and discussion that got me thinking. On Sunday Bystander on the Magistrates Blog posted a piece entitled 'Biter is Bitten' which basically engaged in a bit of schadenfreude brought about by the arrest of five Sun journalists as part of the phone hacking scandal. Not particularly controversial I thought and a view with which I have some sympathy, but I was genuinely surprised by the passion and heat generated over sentencing policy and the state of the Criminal Justice System generally in the comments section.

At first I was keen to add a probation officers viewpoint, but to be honest the number of thorny issues raised were so great that I decided to reflect further and pen this post instead. To try and summarise, there was a view that the likes of The Sun and Daily Mail were merely voicing what ordinary people knew to be the truth about 'soft' judges and magistrates, who are just part of a liberal middle class elite and who feel they know better than ordinary folk about crime and punishment. The answer was obviously to lock more people up for longer and that in itself would be an effective deterrent. The tabloids were merely telling the truth and that was the reason they were hugely successful - unlike the quality dailies.

I'm sure I might have missed out some elements of the debate - but I think that's the gist. This sort of debate has raged over many years and unfortunately the probation viewpoint is either never voiced or hardly ever heard. This is a terrible shame and possibly connected to the fact that as a group we're pretty much publicity-shy, despite having been experts in the field for over a century. The absence of a clear voice and message has allowed successive governments of both political parties to seize the initiative and impose their half-baked populist sentencing ideas, the results of which of course we enjoy today.

It might be useful to look at crime through the analagy of health or indeed life itself. In effect it's all a game of chance, right from fertilisation of the egg through to the point at which our pre-determined genetic pre-disposition meets the effects of our lifestyle and death. We all know that choosing our parents carefully will in all probability be the single most important factor that determines our future prospects. Probation officers know only too well that the vast majority of their clients do not get a great start in life. That's a fact, but that's always been the case, so what's changed I hear you say? Drugs!   

Over my career I can say without a shadow of doubt that the whole criminal landscape has changed beyond recognition due to the widespread and unstoppable use of narcotics. A vast amount of acquisitive crime is committed today in order to fund these insatiable habits and this simply wasn't the case when I started out. Just as increasing prison sentence lengths have no effect on deterrence, no matter how sustained the war on drugs becomes it will have absolutely no effect on drug usage. The tabloids don't agree of course - because they seemingly know better and are merely reflecting the views of the public - and therefore no politician dares speak the truth that the whole thing is a costly and futile charade. We must admit that our current drug policy is a disaster and treat it instead as a health issue with legal prescribing.

Over my entire career I have never been aware that criminal behaviour is significantly affected by the deterrent effect of sentencing. What does affect behaviour is much more concerned with the chances of getting caught. Just with smokers not being affected by gruesome photos on cigarette packets, offenders feel confident that they will evade detection. Each feels that there is good reason to believe that justice will not catch up with them. It's the old theory of partial random re-inforcement. But I can hear some people saying at least the public gets a break whilst the offenders are off the streets. Yes that's true, but firstly it's costly, secondly we imprison more people than ever in our history and thirdly what use is it if offenders are returned to society more damaged and less able to cope than when they went in? In the end the only real chance of stopping criminal behaviour is to effect a change in attitude and that takes skill, time and effort.

In terms of sentencing, it always amazes me when routinely there are examples quoted in the media of 'soft' sentencing, without full knowledge of the case. Probation Officers have to be experts in sentencing because they are often charged with advising sentencers based upon detailed assessments of each offenders background, attitude and environment. This information is normally confidential for sound professional reasons and unfortunately can sometimes compound the public's perception of a sentence being 'soft'.

All I can say is that in my experience, having sometimes sweated blood and tears over some Pre-Sentence Reports, I have more often been disappointed at my recommendation being ignored by imposition of a harsher sentence, than one being imposed that was more lenient. In such cases there will invariably have been factors that the public would not have been privvy to, that had a direct effect on offending behaviour and that could have been addressed more constructively.  

Now the cynics will say that just shows that Probation Officers always 'down tariff' rather than 'up tariff' offenders. There did indeed used to be some truth in thinking that, but even so it ignores the fact that when we were rather more closely associated with sentencers than we are today, we had to maintain their confidence. So called 'concordance' rates were monitored enthusiastically both by individual officers and management and was the source of some pride. Somewhat ironically nowadays there is evidence to suggest that more-recently trained officers have a tendency to 'up tariff' offenders which I find a sad indictment on the changes imposed upon us over the last 10 to 15 years. In essence my message would be that the need to punish rather less and understand more has never been greater. I can't help but notice that that goes counter to current political thinking though.




  1. Hey,

    This is a very well presented argument/summary of what I've come to think of as the 'liberal' viewpoint on drugs. Unfortunately, I've also come to believe there is a serious flaw right at the heart of it (to be fair, the same flaw also applies to 'prohibitive' drug policy.

    Either drug X is highly addictive or it is not. If it is, we should expect that using it will ruin your life. You will devote your life to getting more of the drug, and nothing will stop you. In this case, criminalising existing drug use will not help existing drug users - they are addicted and ill. Also in this case, taking the drug even once will put you on this course. It is important that the drug user be criminalised in order to prevent more people becoming drug users. Incidentally, China followed this path in the 1800's, and was able to eliminate widespread opium addiction (requiring a state-sponsored level of brutality which I am not endorsing).

    Alternatively drug X is not all that addictive. In this case it probably should be legal - why treat it differently than alcohol, for example? However, also in this case the 'prohibitive' approach (trying to make it more dangerous to deal drugs, limit supply and therefore raise prices so as to reduce usage) should straightforwardly work. People will reduce intake of drugs in order to pay for other offsetting pleasures. There's some data - from the recent financial-crisis reduction in income - that this is in fact true (and in fact, the China experience, where using drugs came with a solid chance of having your arms and legs broken for you, also supports this).

    You can see the problem for both viewpoints here. Either you need to argue drugs aren't that addictive and existing prohibitive policy is working on drug users, or that they are that addictive and that existing prohibitive policy is failing drug users but helping the rest of us.

    PS: Regarding your argument about 'releasing criminals back into society', I think that most Sun readers probably do understand this. Hence the desire for ever-longer sentences, and miserable conditions in prisons (so as to make the benefit of the crime less attractive than the time). Your point about criminals believing they will not be caught is well taken, but Sun readers also back strong policing - like it or not, it is a consistent position for them to hold.

    1. This is the argument of the beard - you say either drugs are 'very addictive and you are an addict forever' or 'not all that addictive...'.

      What about a middle ground where it varies from drug to drug and from person to person? Treating drugs as an illness would no doubt reduce acquisitive crime.

  2. Inspector Gadget is often berating magistrates [amongst others] for sentences which are in his opinion "too soft" notwithstanding the Guidelines. His opinions are probably held by a majority of his colleagues. You are tending to the opposite point of view; perfectly understandably. I would suggest therefore that magistrates` courts "get it right" most of the time. Or is that too simplistic?

  3. Jim,

    Sound post...the sad death of WH last week put me in mind of a funeral I attended, when working as a PO, for a client who died after a lethal New Years crack binge,as the curtains parted for his final journey the theme from the Bodyguard filled the Chapel! .. he had been using drugs for 30 years & successive sentences had virtually no impact on his usage..( although he ' nearly'always kept his appts & even when not on sv would ask after me!).drugs continue to play such a powerfully symbolic social role in the punishment structure & the punitive absurdities in sentencing have resulted in what ? ( mass incarceration) the USA crack supply was, until Pres Obama amended the law, punished 100 times more severe than powdered cocaine supply.. now it is only 18-to-1!!

    which reflects the 'Humpty Dumpty ' principle in Criminal Justice ...' if all the kings horses & all the king's men couldn't put Humpty together again, then by heavens, we need more horses & more men'!


    1. Not sure why one would cry over someone who chose his path in life. And don't say he couldn't help himself. He made a choice. Tough on him and those who loved him. No one else is to blame, including you.

  4. There is plenty of evidence that prescribing drugs to addicts reduces offending in ways that the criminal justice system has repeatedly failed to do. But the politicians are reluctant to go down this route because the Sun/Daily Mail reader won't 'get' the rationale for it i.e. that drug realted crime is about getting the money to buy drugs and that, if the drugs could be obtained in another way, there would be no need to offend. Make it a Health issue instead of a Criminal Justice issue and you will not have any offenders to sentence.

  5. Justice of the Peace,

    Well in my experience magistrates courts do get things about right most of the time, having regard to sentencing guidelines of course. My concern as always is when strong arguments from Probation are ignored - as opposed to what might be termed 'routine' recommendations. There are anomalies in every court where certain justice's prejudices and views become well known and so great effort is made to avoid them! DJ's offer consistency of course and can be more willing to take bolder sentencing decisions than a lay bench. They can also be tougher on the other hand. It's all swings and roundabouts and a lottery to a certain extent of course.

  6. There are 5 aims in sentencing, Punishment, Reduction of crime, Reform, Protection of the Public and Reparation but the greatest of these is PUNISHMENT.

    1. Punishment, eh? What a sordid vengeful little man you must be. Your tone suggests that any criminal sanction is ineffective unless the law-abiding enjoy its infliction in some dark twisted manner.

      A penalty for an offence should aim to reduce the risk of further offences either by the offender or others who might contemplate it. Some jurisdictions kill, ours incarcerates, fines or inconveniences. The effectiveness of any approach is always open to question.

      What should never be in question is Chesterton's maxim: "...everybody wants a punishment to have just these two qualities about it. First, that a man can inflict it and remain a man. Second, that a man can receive it and remain a man. If it passes these limits the victim may very well kill the executioner or the executioner may very well kill himself."

    2. Try getting your head out of the Guardian and read the sentencing guidelines sometime.

  7. A couple of thoughts from across the water:
    There are far more nuances in addiction than hallam.jon proposes: the "addictability" of a drug is incredibly variable for most drugs, as it in not just the drug but the person in conjunction with the drug. One treatment center I know lists 30+combinations and degrees.

    China didn't end its addiction problem, as a even a cursory visit to the outlying areas would tell you. Even in such urban areas as Harbin, opiates are frequently found and offered for sale. Opium production is carefully watched over by the army, which takes its cut.

    Consistent position or not, desire for punishment or not, the social cost of imprisoning cast swaths of our youth is likely more damaging to the average person than the crime which it doesn't stop. Eventually we will have to choose whether we are interested more in having less crime (and accepting a change in the social mores which keep them illegal) or punishing more people, more harshly (and paying ever increasing amounts for it).

  8. I think what is often forgotten in drug policy or rather by those who call for the legalisation of drugs, is that not all crime perpetrated by drug users is acquisative - although of course significant crime is.

    I'm referring here to driving while high on drugs. Up until now, this has largely been underreported in the press save for a couple of Daily Wail articles mainly due to the fact that there has been no reliable roadside procedure.

    I suspect that were drugs to be legalised, we would see absolute carnage on the roads as this would be taken to be carte blanche to drive while totally out of it. Of course, this is and would remain an offence, just as drunk driving is but it has taken probably around 30 years to make drink driving relatively unacceptable behaviour. I suspect with drugs, it will take much longer.

  9. Making drugs 'legal' is not the issue; making them availabel as a treatment option to practitioners makes the issue manageable and takes it out of the hands of the crime syndicates that force people into crime and prostitution to fund their drug use. Whether someone can drive when using is another issue that, of course, would need looking at but I can't see how using drugs as a treatment tool would exacerbate the problem. Selling it over the bar in pubs like tobacco, yes, but using it as a treatment option, no.

  10. I am sorry but your views epitomise almost everything that is wrong with our criminal justice system, including the Probation Service. In another post you lament the days when Probation were effectively Social Workers. 100 years of experience counts for little if you are wrong. Government changed the role of Probation officers because they didn't want them to be Social Workers. I understand all the social welfare issues that many offenders have. Co-ordinating that assistance and support is important but so are consequences. There are no consequences in our justice system. I have seen young probation officers told to fuck off by their charges. No breach. They don't know what to do about it.
    On what evidence do you state that sentencing has no effect on deterrence? Utter rot.
    You then claim that the chances of getting caught has most effect on crime. How? When offenders are caught there is no effective consequences for persistent offenders including deterrent sentencing and no effective rehabilitation.
    It is impossible to do anything but gloss over the arguments here. I strongly recommend you read a book by David Fraser, a former senior probation officer. It is called A Land Fit For Criminals. He has woken up and understands the justice system for the complete sham it is.