A Recipe For Probation?

Thanks go to the reader for pointing me in the direction of a recently-published collection of essays 'Crime and Consequence : What should happen to people who commit criminal offences?' published by the Monument Fellowship. A cursory scan of the 419 pages confirms that there's much in this, the third volume, produced as part of a legacy project funded by the former Monument Trust, part of various Sainsbury endowments.

What particularly struck me is how 'probation' continues its seemingly inexorable slide into irrelevance and oblivion under the ever-tightening dead hand of Civil Service command and control, but look hard enough and the case for our being reinvented is just about discernible! Apologies to the respective authors, but I have quoted selectively in order to make the point. 

INTRODUCTION

Ok, so what should we do with people who commit crimes? That question, in this third book from a series prompted by the Monument Trust, is not as simple as it looks, but whether you’re an abolitionist or a supporter of harsh punishment, it has to be answered. Contributors to this book recognise that getting it wrong can have unintended consequences. Some sentences make victims feel worse, some contribute to reoffending, some increase the possibility of intergenerational crime. Put simply the answer to the question must be fair, it must also be intelligent. Our contributors have addressed the question from a range of perspectives and standpoints. They’ve responded in different and creative ways, through essays, poetry, collective responses; there’s even a play. They’re writing from many places including a number from prisons.

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Anne Fox and Alison Frater

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RIGHTING WRONGS: THE NEED FOR DIALOGUE

What should we do with people who commit criminal offences? This age-old question has troubled theologians and philosophers for millennia and much ink has been spilled trying to answer it. I’m not going to try to summarise or analyse these literatures in this short paper – I suspect that those who have commissioned this book of essays are seeking practical answers rather than philosophical responses. 

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So, my short answer to this complicated question is this. When people offend, we should listen to what they have to say about it. We should talk to them about what they have done, why they have done it and how we might best respond to the wrong. In these kinds of sensitive and challenging conversations, rather than assuming a position of entitlement and moral superiority, we should ourselves expect to be surprised, challenged and corrected. If the dialogue identifies a need for some kind of help to assist the person to function and flourish in the community, then we might explore rehabilitative options. If apology and reparation can be made, then we should also explore those possibilities with all of those concerned. And if we are met with silence or resistance or rejection or violence, perhaps we may need, with regret, to make some use of penal power to impose constraints to protect ourselves and others. But, even then, we should ask ourselves, what were the roots of this silence, resistance, rejection or violence, and have we been complicit somehow in generating it – either because of our response to the offence or because of some earlier wrong that we have neglected to repair.

Fergus McNeill

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MORE OR LESS?

Introduction

In recent decades criminal policy has suffered from ‘the politician’s fallacy’. This is the Whitehall logic first coined 30 years ago in the TV programme ‘Yes Prime Minister’, which argues: We must do something. This is something. Therefore, we must do this. 

More often than not, the ‘something’ has involved creating more and more criminal offences and responding more harshly those who commit them. To be fair, the aims of dealing with people who commit crime have long included reform, rehabilitation and reparation to victims. But these ‘Three R’s’ are all too often outranked by punishment, deterrence and the protection of the public. It’s these latter three purposes which usually take priority in decisions about individual cases, new policy developments or the allocation of resources. With public concern about crime at its highest level since 2011, there’s a risk that criminal justice in the 2020s will take a yet more punitive turn. 

There are many reasons to be concerned about that prospect: 

• the ethical, social and financial costs of punishment; 
• the way it bears disproportionately on the poorest and on racial minorities; 
• and the basic fact that it does relatively little to reduce crime. 

That’s why we need to adopt a very different approach. 

Doing More 

There are some activities in the existing system which we need to do much more of. 

One is finding out why individuals commit the offences they do and what factors lie behind them. Decisions about how best to respond to a criminal offence need to be informed by a genuine process of social inquiry into the context of what’s happened and the best way of addressing it. Probation officers used to prepare detailed and comprehensive social inquiry reports. Today’s pre-sentence reports have often become rushed and superficial – seen as a bureaucratic hurdle, to be dispensed with if necessary in the interests of efficiency and speed. Instead, they should be key to enabling the court to identify the right measures to impose in an individual case. 

Second, we need to offer more opportunities for people who commit offences to put things right through restorative and reparative measures. There’s good evidence that Restorative Justice (RJ) has positive effects by giving victims the chance to tell offenders about the impact of their crime and get an apology. Yet, despite support from successive governments, the proportion of incidents where victims are given the chance to meet the offender halved between 2010 and 2017 to just 4% – this is in spite of the fact that in almost a quarter of incidents victims say they would have accepted an offer to meet the offender. We clearly need to invest more in timely and effective mechanisms for engaging the parties involved and organising restorative activities whether conferences or mediation sessions.

Third, people who persistently commit offences need a much wider range of assistance to change direction with the necessary treatment, help and support available on the required scale – both in custody and in the community. This isn’t about developing and accrediting complex new psychological programmes but taking simpler, but more wide ranging, steps – for example, to ensure that life inside prison resembles life outside, where possible, and that people serving jail terms are encouraged and inspired make changes to their lives and desist from crime. 

On the outside, if that’s to be a reality, they will often need: 

• access to employment or some type of income, 
• access to education, 
• suitable housing accommodation, 
• medical services and addiction treatment services, 
• debt counselling 
• and supportive relationships to be able to sustain a new way of life.

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Rob Allen

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WHY THE ‘WHY’ MATTERS

As the movement of justice reform in the United States has gained traction in recent years at both local and national level, debates have swirled around everything from bail practices to charging decisions, risk assessment, sentencing reform, mass incarceration and more. But at its heart, much of the debate can be boiled down to one question: What should happen to people who commit criminal offences? For centuries, the traditional court system’s response has been fairly uniform – determine what happened (by plea or trial), consider the individual’s criminal history (if any), and calculate a corresponding sentence (of course, in some circumstances, the individual may be acquitted entirely). The more serious the charge and more substantial the person’s criminal history, the heftier the sentence. 

The flaw with such an approach is that it overlooks the most critical question of all: Why did this person commit this offence? Problem solving courts were developed to address precisely this question, because if we do not address the underlying issues that led someone to commit an offence, how can we expect to change their behavior? The traditional approach to justice has produced high rates of recidivism, lack of confidence in justice, bloated federal, state and local budgets and a trail of unsatisfied victims. The problem-solving approach, in contrast, seeks to identify those underlying issues – such as substance abuse, mental health issues, trauma, unemployment, and so forth – and, where appropriate, use the power of the court to empower the defendant to address those issues. 

Once the root causes of the behavior have been identified, the system is then positioned to craft a response to address those issues, while balancing the need for accountability and public safety. To be sure, this is no easy task; but there are principles and practices that have proven to be effective in reducing recidivism while simultaneously promoting confidence in that justice system. These are the same principles that form the foundation of problem-solving courts in our system, and they should inform both the process and the outcome of a case. 

Who is the accused as a person? 

Our courts have historically been built to process cases, rather than to help people. They often reduce people to a charge, allowing the mistakes they have made to define them and viewing defendants through an overly simplistic lens that strips them of their humanity, thereby making it easier to mete out punishment and turn a blind eye to the system’s failures. Problem-solving courts, in contrast, take a holistic view of the person, acknowledging them for who they are in totality – a father, a daughter, a caretaker, a friend, a mentor, and so on – rather than what they have done. We must start from the premise that anyone who commits an offence is more than that one act, more than a simple charge or docket number or a moment in time. They are a whole person, with a past, present and future; a past that has likely been marked by trauma and victimization, including many circumstances beyond their control; a present that exists outside of this case, where they are part of a community, with obligations to loved ones or employers, and where they may face enormous instability, pain and stress well beyond this case; and a future for which they have hopes and dreams, aspirations and fears. It is within this complex package that every individual arrives at the doorstep of the justice system and must therefore be viewed and treated as such.

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Judge Alex Calabrese and Amanda Berman