Criminal Justice Social Work After McLeish: Possibilities and Pitfalls

1. Criminal Justice Social Work After McLeish:Possibilities and Pitfalls Fergus McNeill Professor of Criminology & Social Work 0141 950 3098 Fergus.McNeill@strath.ac.uk

2. Structure • The trouble with rehabilitation • A little on the background to McLeish • The main recommendations – for CJSW at least • Payback and public opinion • Reinventing rehabilitation and CJSW • Possibilities and pitfalls

3. The history of rehabilitation Rotman (1990) • Penitentiary • Reforming the sinner • Therapeutic • Fixing the flawed • Social learning • Educating the poorly socialised • Rights-based • Reinstating the excluded

4. The collapse of the rehabilitative ideal • Bottoms (1980) • Theoretically faulty: misconstrues the causes of crime [and its nature] • Systematically discriminatory: leads to targeting of coercive interventions on the poor and disadvantaged • Inconsistent with justice: judgements about liberty unduly influenced by dubious and subjective ‘professional’ judgements hidden from or impenetrable to the offender • Fundamentally moral problem is the coercion underlying rehabilitation but, by the way, it doesn’t work! • N.B. Principally a critique of the treatment/medical model of rehabilitation

5. Possible responses… • Bottoms (1980) • Rehabilitation revisited (consent, resources and liberty) • The justice model (elimination of arbitrary discretion) • Radical approaches (problems of just deserts in an unjust society?) • Incapacitation and general deterrence (overt social control) • Reparation (and the recognition of the victim)

6. But which version(s) of rehabilitation? • ‘I have suggested that the types of therapeutic programme and discourse which are usually discussed [medical-somatic] are the types which are least common in practice, and that the types which are usually ignored [social-psychological] are the most common in practice’ (Johnstone, 1996: 178-179). • Different views of causes (material versus environmental; ‘between the ears’ and ‘beyond the ears’) • Different role for the individual in relation to the ‘condition’ (object versus subject) and in relation to ‘treatment’ (passive versus active) • Different treatment targets: individual versus individual, organisational, environmental

7. Principles of the new rehabilitationists • The duty of the state to provide for rehabilitation • Proportional limits on the intrusions of rehabilitation • Maximising voluntarism • Prison as a measures of last resort (Cullen and Gilbert 1982; Rotman, 1990; Lewis, 2005)

8. Contemporary rehabilitation? (McNeill, 2006)

10. The use of community disposals in Scotland, 1932-2006

11. Average daily population of Scotland’s prisons, 1900-2007

14. Scotland’s Choice (2008) • ‘The evidence that we have reviewed leads us to the conclusion that to use imprisonment wisely is to target it where it can be most effective - in punishing serious crime and protecting the public. • To better target imprisonment and make it more effective, the Commission recommends that imprisonment should be reserved for people whose offences are so serious that no other form of punishment will do and for those who pose a significant threat of serious harm to the public. • To move beyond our reliance on imprisonment as a means of punishing offenders, the Commission recommends that paying back in the community should become the default position in dealing with less serious offenders’ [emphasis added].

15. Main implications for CJSW • Community payback and the CSS (2 and 11) • Enhanced court SW units • Diversion (3) • Bail (5) • Stage 2 sentencing vs. social enquiry (12) • Stage 3 progress courts (13) • NCJC and NSC (8, 9 and 17) • Resettlement and recall (18, 20 and 21)

16. National Community Justice Council Scottish Government National Sentencing Council Parole Board for Scotland Scottish Prison Service

17. OTHER PENALTIES Paying Back without Supervision Conviction Admonition Fines, etc. Paying Back through Restorative Justice THE COMMUNITY SUPERVISION SENTENCE Paying Back in and to the Community Paying Back Financially Paying Back by Working at Change Paying Back through Unpaid Work PRISON Punishing Serious Crime Protecting the Public Paying Back through Restriction of Liberty

18. STAGE 2: What kind of payback? STAGE 3: Checking progress and payback STAGE 1: How much payback? The judge makes a judgement about the level of penalty required by the offence – with information from the PF & defence agent The judge makes a judgement about the best form of pay back – with input from the court social worker and the offender The compliance court holds the offender to account for paying back – recognising progress and dealing with lapses and setbacks

19. Attitudes, Values, Thinking Drugs Use Alcohol Use Peer Pressure Money Problems Personal Problems Paying Back by Working at Change Work and Leisure Education and Training Family Issues Mental and Physical Health Housing Other Problems

20. Payback in McLeish (2008) • In essence, payback means finding constructive ways to compensate or repair harms caused by crime. It involves making good to the victim and/or the community. This might be through financial payment, unpaid work, engaging in rehabilitative work or some combination of these and other approaches. Ultimately, one of the best ways for offenders to pay back is by turning their lives around. (3.28, emphasis added) • …it is neither possible nor ethical to force people to change. But we are clear that if people refuse to pay back for their crimes, they must face the consequences.(3.31b) • The public have a right to know – routinely – how much has been paid back and in what ways. This does not and should not mean stigmatising as they go about paying back; to do so would be counter-productive. But it does and should mean that much greater effort goes into communication with the communities in which payback takes place. (3.31c)

21. Payback in Casey (2008) • ‘Engaging Communities in Fighting Crime’ • A solution to perceived problems of public confidence in criminal justice and community penalties… • Community service re-branded (again) as ‘community payback’ • CP to be more visible and more demanding; not something the general public would chose to do themselves (i.e. painful or punishing) • Offenders doing payback should wear bibs identifying them as such (i.e. shaming)

22. Understanding the public’(s’) opinion(s) • There is no public opinion • The myth of the punitive public • Retribution, reparation, rehabilitation • British Crime Survey (2007) • Only 20% think probation (in E&W) is doing a good job • Ignorance of what it involves: • “I don’t think probation means anything to many people” (Allen and Hough, 2007) • A common finding around the world • So what to do about it?

23. Two (or three) strategies (Maruna and King, forthcoming) • Ignore the public, leave it to the experts • Cognitive strategies: Educate the public • But the evidence that cognitive strategies address deep-seated attitudes about punishment is limited; like it or not ‘evidence’ - in and of itself - does not persuade • Emotive strategies: Affective justice • Emerging evidence suggests we need to understand the emotional needs (in social and cultural context) that underpin attitudes to punishment • The promise of belief in ‘redeemability’? • Sending the right signals (Bottoms and Wilson, 2004)

24. Casey’s Payback vs. McLeish’s Payback? • ‘Casey is absolutely right to utilise emotive appeals to the public in order to increase public confidence in the criminal justice system. Justice is, at its heart, an emotional, symbolic process, not simply a matter of effectiveness and efficiency. However, if Casey’s purpose was to increase confidence in community interventions, then she drew on the exact wrong emotions. Desires for revenge and retribution, anger, bitterness and moral indignation are powerful emotive forces, but they do not raise confidence in probation work -- just the opposite. To do that, one would want to tap in to other, equally cherished, emotive values, such as the widely shared belief in redemption, the need for second chances, and beliefs that all people can change’ (Maruna and King, forthcoming).

25. Social work, rehabilitation and punishment • Punishment or alternatives to punishment? • Constructive punishment or ‘merely punitive punishment’? (Duff, 2003) • A concern for justice or a concern for effective crime control? • Safer and stronger (and fairer?) • Punishment in conditions of insecurity • Trust, confidence and leniency • Expressive punishment • CJSW’s proper signals?

26. Safer, Stronger [and Fairer] Retribution (but not ‘merely punitive’ punishment) Reparation Rehabilitation CJSW

27. Safer, Stronger [and Fairer] Communities Courts Victims Offenders CJSW

28. Possibilities and pitfalls • Insecurity, safety and protection • Community safety or public protection? • The paradox of protection and the risks of risk • Prioritising future/virtual/dividual victims and offenders over ‘real’ victims and ‘real’ offenders • Rehabilitation as reparation and restoration • The problem with the ‘re-’ • The moral and practical necessity of the other unfashionable ‘re-’: redistribution

29. Possibilities and pitfalls • Rethinking rehabilitation’s moral priorities and practical focus • Communities’, offenders’ and victims’ rights to the 3 ‘R’s • Taking victims and communities seriously • But to what extent is maintaining the balance the job of CJSW and/or the job of the whole CJS and/or the job of the whole of society?

30. CJSW’s choice? • We can wait and see how other stakeholders redefine the field, or we can work out how to do that for ourselves, drawing on the collective knowledge, values and skills that accrue from over 100 years of experience… and study, here and elsewhere.

31. References • Allen, R. and Hough, M. (2007) ‘Community penalties, sentencers, the media and public opinion’ in L. Gelsthorpe and R. Morgan (eds.) The Handbook of Probation. Cullompton: Willan. • Bottoms, A. (1980), ‘An Introduction to ‘the Coming Crisis’’ in A.E. Bottoms and R.H. Preston (eds.) The Coming Penal Crisis. Edinburgh: Scottish Academic Press. • Cullen, F.T. and K.E. Gilbert (1982) Reaffirming Rehabilitation. Cincinnati, Oh.: Anderson • Duff, A. (2003) ‘Probation, Punishment and Restorative Justice: Should Altruism Be Engaged in Punishment?’, The Howard Journal 42(1): 181–97. • Johnstone, G. (1996) Medical Concepts and Penal Policy. London: Cavendish. • Lewis, S. (2005) Rehabilitation: Headline or Footnote in the New Penal Policy?’, Probation Journal 52(2): 119–36. • McNeill, F. (2006) ‘A desistance paradigm for offender management’, Criminology and Criminal Justice 6(1): 39-62. • Maruna, S. and King, A. (2008) paper forthcoming in the next issue of the Probation Journal (December 2008) • Rotman, E. (1990) Beyond Punishment. New York: Greenwood Press. • Scottish Prisons Commission (2008) Scotland’s Choice. Edinburgh: Scottish Prisons Commission