Punishment and Correctional Practice: Ethical and Clinical Implications

1. Punishment and Correctional Practice: Ethical and Clinical Implications Tony Ward PhD, DipClinPsyc Victoria University of Wellington tony.ward@vuw.ac.nz

2. Key Papers • Connolly, M & Ward, T. (2008). Morals, human rights, and practice in the human services. London, UK: Jessica Kingsley. • Ward, T. & Birgden, A. (2007). Human rights and correctional clinical practice. Aggression and Violent Behavior, 12, 628-643. • Ward, T., Gannon, T., & Birgden, A. (2007). Human rights and the treatment of sex offenders. Sexual Abuse: A Journal of Research and Treatment, 19, 195-216 . • Ward, T. & Langlands, R. (in press). Human dignity and vulnerable agency: An ethical framework for forensic practice. Aggression and Violent Behavior. • Ward, T & Moreton, G. (2008). Moral Repair with Offenders: Ethical Issues Arising From Victimization Experiences. Sexual Abuse: A Journal of Research and Treatment, 20, 305-322.

3. Outline • 1/ Definition of punishment. • 2/ Problem of punishment and its relevance for correctional practitioners. • 3/ Justifications of punishment and their practice implications: Consequential, retributive, and communicative theories. • 4/ Conclusions.

4. Definition of Punishment • Punishment is the intentional imposition of a burden on an individual following his or her violation of important social norms, or putting it more powerfully, for acts of wrongdoing (Bennett, 2008; Kleinig, 2008). • Specifically, punishment in the CJS has 5 necessary elements (Boonin, 2008): It is authorized, intentional, reprobative (censure), retributive (following a wrongful act) harm. • Distinction between intended and foreseen harm.

5. Problem of Punishment • Issue of justifying punishment arises due to the fact that harms inflicted on offenders may cause them significant suffering and set back their core interests (includes families, friends etc). • The deliberate infliction of suffering is ordinarily considered to be morally wrong and thus requires explicit justification.

6. Problem of Punishment • Punishment & its justification ethically relevant (inescapable!) for practitioners: • (a) issues internal to role: prof norms and tasks. • (b) issues external to role: abusive institutions. • Two distinct but overlapping normative frameworks evident in the Correctional System that reflect: • (a) State’s response to crime (ethical + prudential) • (b) Rehabilitation/treatment programs (prudential + ethical).

7. Problem of Punishment • Treatment work with offenders occurs within context of punishment and response to crime which constrains and penetrates practice arena. • This can create problem of boundary blurring between punishment and therapy: some elements of programs fall within definition of punishment or may collapse into punishment (e.g., “cognitive restructuring’!). • Thus practitioners may unclear exactly what task they are engaged in: punishment versus treatment. • Two traditional ways justifying punishment, consequentialism and retributivism (Bennett, 2008; Kleinig, 2008).

8. Justification of Punishment: Consequentialist Theories • Consequentialist theories seek to punish people because of what are seen as the positive consequences of the practice such as reduced crime rates, rehabilitation, deterrence, or the incapacitation of offenders. • Major problem with forward looking theories of this type is that it is logically possible to countenance the punishment of innocent persons if the overall effect is viewed as desirable. • Also, offenders used means rather than regarded as ends in themselves: i.e. fellow members of the moral community. • Subverts offender moral agency!

9. Practice Implications of Consequentialist Theories of Punishment • Emphasis on deterrence, prevention, or incapacitation likely to create a practice environment where pressure to detect and manage risk variables; technically focused. • Focus is squarely on estimating degree to which individuals constitute a threat to the community and then setting out to reduce or minimize their risk factors in the most cost efficient manner. • Individuals are viewed as bearers of risk, potential agents of harm, or hazardsresulting in less attention to therapeutic relationship and offenders personal goals and aspirations.

10. Practice Implications of Consequentialist Theories of Punishment • Security concerns and the rights of victims and the community are likely to trump those of offenders. • Intense security inside prisons and less concern with providing offender programs. • Strict parole etc monitoring emphasized. • Therapeutic work more concentrated on reduction of risk factors and likely to be porous boundary between ethical and prudential values evident in programs (e.g., civil commitment, ESO, geog restrictions, com notif ). • Individual offender focus and neglect of community’s obligation to offenders re reintegration.

11. Justification of Punishment: Retributive Theories • Retributive theories are backward looking and based on notion of just deserts (annulling advantages of crime, vindication of victims, expression of anger etc). • Primary aim of punishment is to hold offenders accountable for crimes by inflicting burdens that are roughly equal in harm to those inflicted on their victims. • No explicit attempt to reduce rates of future offending or rehabilitate offenders.

12. Justification of Punishment: Retributive Theories • Offenders thought to have a right to punishment because of their status as fellow moral agents. • Problems with retributive approaches revolve around issue of deciding what constitutes equal harm and how to avoid becoming overly vindictive and therefore failing to respect (recognize) the dignity of offenders. • Both traditional approaches have severe flaws and therefore communicative and restorative theories have been proposed as alternative justifications of punishment or responses(!) to crime (Bennett, 2008; Boonin, 2008, Duff, 2001; Walgrave, 2008).

13. Practice Implications of Retributive Theories of Punishment • Less attention given to question of how to intervene therapeutically in offenders’ lives and more on holding them accountable; responsibility focused. • Stress on vindicating victims right to be heard and expressing anger to offender via harsh sentences. • Less interest in consequences of imprisonment for offender and future crimes and therefore less attention to treatment or general programs. • Greater likelihood of unsupportive post release social environment for offenders; pressure groups, #media.

14. Practice Implications of Retributive Theories of Punishment • Less opportunity for offender redemption and lack of concern for restorative practices. • Harsher conditions of imprisonment and less access to recreational and educative resources. • Offender viewed as more deviant and tendency to locate sources of offending in entrenched individual pathology and character flaws. • Pressure for moral education programs and remolding of personality of offenders. • Downgrading of value of psychological and therapeutic perspectives generally.

15. Justification of Punishment: Communicative Theories • Communicative justifications of punishment have basis in liberal communitarian view of political and moral public institutions (Duff, 2001). • Offenders viewed as members of normative community (“one of us”) and therefore are bound and protected by community’s public values: autonomy, freedom, privacy and pluralism. • Takes crimes seriously as wrongs but does not seek to exclude offenders from community politically, materially, or normatively (human rights- Ward & Birgden, 2007). • Seeks to induce repentance, reform, and reconciliation through imposition of sanctions. Does not morally educate in coercive sense but seeks to persuade. • Has both consequential and retributive elements.

16. Practice Implications of Communicative Theories of Punishment • Generally greater attention to rights of all stakeholders including offenders by virtue of equal moral status of each; relationship focus. • Distinction between recognition respect versus appraisal respect means holding offenders accountable does not diminish inherent dignity: easier to view offender positively and establish stronger practice relationship. • Crime seen as community responsibility rather than simply individual and therefore greater attention to social and economic inequalities related to crime. • Secular repentance takes seriously moral agency of offenders and the importance of them grasping harm inflicted on victims and community- importance of offender empathy, emotional responsivity and personal responsibility.

17. Practice Implications of Communicative Theories of Punishment • Reform element points to necessity of offender becoming motivated to change self and behavior for ethical as well as prudential reasons. • Creates some tension between practitioners twin roles as treatment providers and facilitators of moral change. • Reconciliation element indicates need for strong community support and social scaffolding in reintegration practices. • Stress on promoting better lives for offenders alongside safer ones for members of the community. • Desistence and multidisciplinary orientation.

18. Conclusions • Correctional practitioners work in a context heavily influenced and constrained by punishment policies and practices: Unique ethical challenges. • The implications of punishment theories effectively help to constitute the norms regulating professional activities and thus partly determine what is good practice (e.g., risk evaluation, restorative interventions). • Different justifications of punishment have varying implications for practice.

19. Conclusions • Be that as it may, correctional practitioners ought to be clear about the tasks they are involved in and to what degree they are ethical , prudential - or a combination of both - in nature. • Importantly, they need to critically reflect on the theory of punishment that underpins their work in the correctional context. • Offenders are subject to State sanctioned intended harms and we do them a grave injustice if the justifications for these imposed burdens are carelessly arrived at and thoughtlessly delivered.