‘Pains of probation’: practice implications Ioan Durnescu University of Bucharest

1. Penal policy, crime and criminology – experience and new challenges.50-year Anniversary of the Institute of Criminology and Social Prevention ‘Pains of probation’: practice implications Ioan Durnescu University of Bucharest

2. Methodology issues: • Questions: • What are the ‘pains of probation’? • How they affect the rehabilitation process? (discussion) • Method for collecting data: in-depth interview with 43 probationers from three different probation services selected as they were scheduled to attend appointments with probation counsellors • Interviews transferred on paper and analysed using thematic approach (Wolcott, 1994) • Qualitative research aiming to elicit the subjective experience of probationers they would rather avoid if possible.

3. ‘Pain’ in the literature • Sykes (1958) – ‘pains of imprisonment’ as ‘… deprivations or frustrations of prison life … as punishments which the free community deliberately inflicts on the offender for violating the law’ (p. 64) • Five ‘pains of imprisonment’: deprivation of liberty, deprivation of goods and services, deprivation of autonomy, deprivation of heterosexual relationships and deprivation of security. • Payne and Ganey (1998) – ‘pains of electronic monitoring – house arrest’ in terms of: monetary costs, effects on family, temptation effect and bracelet effect. • Prison Reform Trust (1997) – a man who ‘cut off his tag because it made him feel like a dog’ • In France, for instance, after mobile electronic monitoring was introduced (2005) a number of offenders complained that the alarm was wrongly set off rather frequently and that the tag was ‘not discreet and thus socially problematic’ (Herzog-Evans (2009) in European Journal of Probation – www.ejprob.ro 1(2)). • Other effects of electronic monitoring have included the feeling of being constantly monitored (Mair, Mortimer 1996) and stress caused by the fear of being sent back to prison (Herzog-Evans (2009); Nellis 2009)

4. ‘Pains of probation’ in this study:1. Deprivation of autonomy • The requirement to attend appointments, to inform or to do certain activities (obligations) ‘What I want the most … the only thing that I wish for is something to change and I wouldn’t have to come here (i.e.. to the probation service) twice a month. It is hard for me to come so many times a month. There are many occasions when I can’t come ‘cause I am sick let’s say … ’ (one probationer in Bucharest). • Difficulties with job or to emigrate in other states for getting a job • Difficulty with joining the family which is located in other states.

5. 2. Pain of reorganizing the daily routine around the sanction • When imposing a suspended sentence under supervision the court also applied a number of mandatory supervisory conditions: to keep appointments with the probation service, to inform probation staff regarding any income sources, to inform the probation counsellor when planning a journey that will take more than eight days and so on. • For example – informing about a journey taking longer than eight days. ‘You have to let them know … at least by calling them. You have to tell them that you want to travel somewhere. This is the procedure .. you have to tell them. It is not that they have to let you do this or that … but you have to inform them. But you have to keep the tickets to prove that you’ve been where you said you go. And that is all. ’ (one probationer in Sibiu) • Offenders have to plan - created significant problems for many individuals , particularly in light of the fact that they tended to lack effective problem solving and self-management skills Andrews & Bonta, 2003. Furthermore, the need to keep the train or the bus ticket to show to the probation counsellor added to the other paper work probationers they were expected to do (e.g. to produce copies from the work register, or copies of a rental contract and so on). Once the sentence is enforced probationers have to produce judicial proofs of their daily routine (work, accommodation, travel and so on).

6. 3. Deprivation of private or family life • Especially during the initial stage of the supervision when the probation counsellor was conducting the so called ‘initial assessment’. Depending on the practitioner’s style, this assessment may take the shape of an open discussion, an investigative interview or even a psychometric session. The coverage of the questions was sometimes so broad that the probationer felt that everything about himself was under scrutiny: ‘Well … the first session … the first session was somehow different … so to say … he made a sort of report about who am I, I remember. I mean whether I have a girlfriend, where I live, what kind of people my parents are, what jobs they do, what is my job. I mean … it was about my whole life at that time … ’ (one probationer in Sibiu). • Sometimes even feelings did not escape the scrutiny of the specialist, causing deep frustration and anger especially when this was in conflict with the religious beliefs of the person: ‘when I have to tell my feelings I don’t like telling anyone … I don’t like describing what I feel. I am Pentecostal Christian and I don’t like this. If somebody comes and asks me ‘what did you do ?’ I can not tell, nor even to the (probation) counsellor. I feel ashamed. It is hard. ’ (one probationer in Bucharest) • Some probationers were under 18 and thus were required sometimes to attend their appointments together with their parents. During home visits probation counsellors visited not only the offender but also (indirectly) those people who lived with him: parents, partner, wife, or children. By exposing the whole family to these judicial forms of control the impression was created that both the offender and his family were the object of supervision. This obviously added more pressure on the family.

7. 4.Deprivation of time • Although the meeting itself with the probation counsellor took between 10 to 60 minutes, in order to get there some probationers had to travel long distances. • Problems with public transport • Taking into account that the probation period could be up to nine years, it is clear that considerable amounts of time were effectively taken away from the probationer.

8. 5.Financial costs • For travelling – if far away • Most of them live on social benefit or ‘survival agriculture’ • If they work - employer reduces wages and food voucher for the day.

9. 6.Stigmatization effects • Although it does not involve imprisonment, by being asked to produce proof of employment, or being asked to take hours or even days off in order to attend meetings with probation counsellor, probationers were forced to inform their managers and colleagues about their juridical status: ‘Usually the close ones know about my situation. At work I avoid telling colleagues but somehow they found out … and I had some problems … ’ (one probationer in Bucharest). • As shown above, the probationer’s close family was aware of his legal status. Being under supervision for years is practically impossible to conceal. • A significant stigmatisation issue became apparent when probation counsellors made home visits accompanied by police officers. Usually the police officers were wearing uniforms and therefore their status was clearly apparent to neighbours, friends, and colleagues. As a consequence this practice carried a very significant potential for stigmatization.

10. 7.Forced return to the offence • A significant number of probationers complained that during the meetings, or when participating in probation programmes, they had to discuss their offence and that this forced return to the offence hurt them. • The probation office was always located in the Tribunal building (county court) and that itself reminded the probationer what he or she did. The meetings with the probation staff, the topics they covered in their discussions, the content of the offending behaviour programmes and so on all reminded the probationer about the offence (‘I want to forget .. but in this way … ‘ – one probationer in Iasi ). • However, it is interesting that some probationers identified this pain as being instrumental for desistance: ‘this ritual, to come once every two months is very good ‘cause you remember what was bad …it helps you to do good in the future …’ (one probationer in Bucharest) • The stigma, meetings with the probation counsellor, discussions about the offence and the victim and so on all seem to applications of what ahs been labelled “reintegrative shaming” (Braithwaite 1993). As the author noticed, shame could be reintegrative or disintegrative according to the respect or the lack of respect actually displayed by the correctional staff.

11. 8. Live under a tremendous threat • Even if the failure to comply takes place just before the trial period expires, the suspended sentence under supervision may be revoked and the offender sent to prison without taking into consideration the time spent on suspended sentence. Therefore, not surprisingly, a lot of probationers complained that they live under a tremendous threat – the threat of imprisonment: ‘Well .. first is not to make mistakes, not to make the same mistakes ‘cause you are under supervision now. Anyway I felt the fear right in my bones even when I got arrested. No way .. I don’t even think about doing it again but ….’ (one probationer in Sibiu) • As the person above mentioned, the fear of imprisonment seemed even higher among those offenders who experienced preventive arrest during the trial. • In their practice, probation services employ a very large repertoire of tools to amplify the fear of imprisonment: documents describing the conditions and obligations and the consequences of non-compliance, warning letters, verbal warnings, convocation letters and so on. These are just a few words that have the sound of handcuffs: ‘if I make one more mistake during the next five years as it is my probation period, the judge will give me the first punishment and add the punishment for the second mistake. He (the probation counsellor) told me not to make mistakes ‘cause is not good…’ (one probationer in Iasi)

12. Conclusions on ‘pains of probation’: • As can be easily seen, most of these pains of probation are mainly economic-emotional and not physical. Nonetheless, they cut deeply and are experienced in a variety of ways depending on the personal circumstances and histories of the participants. • However, no matter how difficult it was for probationers to experience supervision, none of them stated that they would replace it with imprisonment: ‘it is ok … far better than being, God forbid, in prison. It is better to stay free that being locked up. I would come ( to probation office) every day only to be free .. . I mean is super OK, no problem … ’ (one probationer in Bucharest)

13. Discussion • By imposing conditions and obligations upon the convicted person, the court obviously seeks to inflict pain on (restriction or interdictions) while also aiming to help his rehabilitation (treatment obligations). This sort of dual nature of supervision is particularly challenging for practitioners who are placed in a very delicate ethical and practice dilemma. In essence, which comes first the punishment or the rehabilitation? Or in other words, where does the punishment stops and when does the rehabilitation process start. • Sometimes these two aspects of probation practice come into conflict and the practitioner needs some kind of practice compass to guide his decisions.

14. Examples of how ‘pains of probation’ frustrates the desistance: • Getting a job -The literature on offender reintegration demonstrates clearly the causal link between getting a satisfactory job and the process of desistance (Laub and Sampson 2003; Farrall 2002 ). • Being close with the family - By preventing the probationer from rejoining his family the probation service denies the him or her access to the social capital so vital for his desistance from crime (Farall 2002, 2004). Social capital is defined by Coleman (1994) ‘the set of resources that inhere in family relations and in community social organisation and that are useful for the cognitive or social development of a child or young person. These resources differ for different persons and can constitute an important advantage for children and adolescents in their development of human capital (300).’

15. Human rights issues • Walker (1991) operates a very useful distinction between obiter punishment, for those consequences that fall upon other people (e.g. family), and incidental punishment that are side effects of punishment (e.g. losing a job). • Obviously some conditions and obligations are intended and stipulated in the law and sentence but others not: • Obiter – family exposure to probation supervision (home visits, parents accompanying children) • Incidental – stigmatization (at the job, neighbours ) – state should protect the private life and dignity of the convicted people. • Obiter – children of probationers especially in a vulnerable position for stigmatization.

16. Financial costs • The financial costs of the supervision is also a good example of incidental punishment. • Travel cost like a second punishment (financial penalty). • The fact of a second punishment has two major negative implications. • First, from the human rights perspective this cost could be seen as an infringement of article 7 of the Convention (no punishment without law) since the probationer is required to accept a punishment not provided by law. • Second, it could be seen as a violation of a traditional Roman principle of law – ne bis in idem (not to apply two punishments for the same offence) since for the same offence the probationer has been sentenced to probation and also forced to pay a sum of money (just like a fine). • State as a duty bearer is under the obligation to minimise or to compensate this unintended punishment, by paying the travel costs of the offender from home to probation office.

17. Effectiveness • The last two pains of probation – pain of forced return to the offence and life under tremendous threat of imprisonment – reveals the theoretical framework of probation practice utilised in parts of Romania. Being focused on the past and based on the threat of a more severe punishment, probation practice seems to operate within the framework of deterrence and the risk/needs/responsivity model - RNR model (Ward and Maruna 2007). • Although adherence to this model have been shown to reduce re-offending there are also some important limitations to be mentioned. One of these limitations also emerges from this study. From the probationer’s answers it can be concluded that the offender’s motivation for adhering to the conditions of probation is not stimulated by the desire for a better life, or for a new and prosocial lifestyle, but rather by a fear of a worse punishment. The way probation supervision is constructed seems to encourage the offender to ‘play the system’ and not to engage in a profound and constructive process of social and psychological change. • Bottoms (2001) useful distinction between instrumental, constraint-based, routinised or habitual and normative compliance. • Normative compliance (active engagement with the content of the sanction)– the only one form of compliance that produce longer term effects on the desistance. • Relationship ???

18. Possible solution • probation practice turns its focus from threats and risks towards strengths and the adoption of a good life model. • A more constructive and probably more effective way of energizing the offender motivation to change is arguably Good Lives Model (Ward and Maruna, 2007 - GLM). • GLM focuses on the offender‘s future supporting him to develop his own plan for a better life. By virtue of its emphasis on ways of living that are personally meaningful and socially acceptable, the model promotes a more respectful and collaborative style of interaction between the probation staff and the convicted person. • The focus of the GLM on both goods promotion and risk reduction seems to respond better to the concerns and aspirations reported by the participants of this study of probation.

19. Conclusion: • most of the ‘pains of probation’ may constitute substantial infringements of human rights or are at least examples of ineffective practice. • Using some specific examples the paper argues for an integrated response to these pains of probation from the human rights and Good Life Model perspective. • Both these perspectives seem to support each other and may help to reduce the unnecessary and counterproductive pains of probation

20. Thank you and Happy Anniversary !!!

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