Prof dr Cyrus Tata Centre for Law, Crime and Justice Strathclyde Law School, Scotland

1. Community Sanctions & Measures WG Lund May 2014Legitimacy, Resistance & Guilt: the Roles of Pre-Sentence Investigation in Punishment Prof dr Cyrus Tata Centre for Law, Crime and Justice Strathclyde Law School, Scotland Cyrus.Tata@strath.ac.uk

2. Official Purposes • Relevant personal & social circs info for the court to assist sentencing • Quality, ideological shifts, influence • Perpetual anxiety about actual impact – mere empty symbolism?

3. What else do PSIs do? Elicit Tease in response to attempts at judicial capture Accelerate ‘disposal’ through expressive moral performance

4. I Elicits Tease in response to attempts to capture judicial sentencing • Promise of the reveal (e.g. for penal reduction) • Quest to apprehend judicial sentencing • Quality-as-Judicial-Satisfaction leads to influence? • Destination ‘Quality’ ?

5. “Consumer society thrives as long as it manages to render the non-satisfaction of its members (and, so in its own terms, their unhappiness) perpetual….The yawning gap between promise and delivery is neither a sign of malfunction, nor a side-effect of neglect or the outcome of a mistaken calculation…..[It] is a necessary condition of a properly functioning society of consumers. If the search for fulfilment is to go on and if new promises are to be alluring and catching….hopes of fulfilment need to be regularly frustrated.”(Bauman 2007: 46-7 original emphasis retained).

6. Consumer Model • Js as sovereign consumers of reports • “An instability of desires and insatiability of needs” (Bauman 2007: 31) • Promise of the new solution (national standards, risk assessment tools, ‘alternatives’ to custody) • “Inbuilt obsolescence” • We are all Consumers of expressed judicial desires: govts, lawyers, social workers, probation, academics

7. II. PSIs Manage the Felt Gap Problem In the books vs action But How do professionals cope?

8. Sense of Guilt / Discomfort Starting point: we like to see ourselves in positive light and through how we believe others perceive us Justification is inherent in inter-personal encounters (Levinas) Finding ways of justifying changes in profl action once deemed wrong (eg Tata 2007 legal aid) Awkward Awareness of gap

9. Sense of Professional Guilt

10. “On a practical level sometimes you don’t have as much time when you’re doing summary criminal legal aid work as you perhaps should have with individuals”[def lawyer intv 10, psr study] ‘It’s just a Factory’ ‘Not what it was’ Could and should be better but resources Explanations to novices (eg also socialisation)

11. The Menace of the Gap Problem • But for justice professionals the gap would make everyday summary work untenable • ‘Professional’ – claim superior ethical standards • As a custodian of justice • Coercion has to be legitimated • A Sense of guilt, shame and embarrassment

12. Defendant Expressions in Admission of Guilt Ideal Disruptive Straight denial (factual) Threat of worse (trial tax, remand) Unsure/confused Fatalism/System Arbitrariness Conscious non-engagement Exculpation / moral challenge Open Guilt • Free, full & sincere admission • Defendant’s Voice is heard • Individual Responsibility • Mitigation • Closed guilt

13. Exculpation & System Challenge • The social worker will say, ‘how do you feel about this offence?’ And he’ll say, ‘how do I feel about it? I’ll tell you how I feel about it. That guy that I assaulted he should have got the jail. He deserved it! He had that coming to him. I just pled because my lawyer told me to plead guilty.’ [Interview, defence lawyer 7] • M: Because the police will lie through their teeth to get a conviction, not all of them. [Face to face interview Accused 12, Scald study]

14. Systemic Distrust I: Right. Do you think the system has been fair in your cases? M: No. I: Why do you say that? M: Just as I says they listen because the police had uniforms and they work for the law, they’re no gonnae listen to lower down, low people as some people would say. [Face to face interview Accused 9, clad study]

15. Systemic Distrust *I: Do you think you always have the chance to put your side of the case? *M: No, no’ really no. *I: Why not? *M: Just cause I’ve picked up charges since I was a very young age an that, I’m always gonnae get picked oot straight away you know what I’m talking aboot, they’re gonnae always say it was me. [Face to face interview Clad study]

16. Defendants and their lawyers *I: Do you think the Lawyer is good at communicating with the Sheriff for you? *M: Yes, yeah. *I: Yeah. How do you find out what’s happening to your case? *M: I just go along with it. *I: Yeah, so do you have meetings with the lawyer beforehand or do you just see him on the day? *M: Yeah I’ve had a couple of meetings. *I: In his office? *M: No he’s came to see me in jail and most of the time when if I’m outside like I … I don’t know, sorta like when I go to court I’ll see him just before my case so it’s only a brief meeting like two minutes I get to see him .. five minutes, it’s not much you know. *I: No, so you think it should be more? *M: Yeah definitely, I think it’s because he’s really busy, he takes on too many clients and if I only get to see him when he’s at the court he’s usually getting called for a case so I don’t really get much chance to speak to him you know. [Intv 10 Scald study]

17. Fear of Worse *I: Yeah. Are you happy pleading .. *M: .. No. No. I'm no ha .. No. Not necessarily! *I: Why not? *M: Coz sometimes you get .. you'd be able to take it to trial and get away wi' it, eh, but it's easier to say […] “Guilty”, eh?. Get it done and over with, and get bail that day – especially when you’ve got a drug habit, eh?, and you're needing to get oot and get anything. You'll plead guilty to anything, ken? That’s me! [Face-to-face interview Accused 4, SCALD study]

18. Confusion and System Doubts I: Is it because you don’t feel that you can tell him what to do or because you just don’t understand what’s going on? M: I don’t really understand the courts you know, I’m just there just thinking he’s looking out for my best interests you know and sometimes that’s probably not the case, you know. [Accused 10 Face to Face Interview]

19. Displaying Fair Justice • Summary process notoriously abrupt – legit gap • Reliance on admission of guilt (plea/confession) beingseenas a free decision • ‘Dirty work’ (Hughes 1951/58/62; Ashforth & Kreiner); Purity & Pollution (Douglas 1966) • “Visceral repugnance” • Butsoc constructed standards of cleanliness and purity • Seen as bothnecessary andpotentially polluting

20. PSIs Display Process Fairness • Present a displayof humanity, dignity & unique individualisation • Participation - a ‘voice’ where otherwise none • Complaints/ ridicule also celebrate apparent individualisation • ‘Context’: performs legal justice’s nod to distributive justice • Closure through the display of openness

21. Morally Dirty work of PSIs • What makes it ‘dirty’? • Challenges RoL justice images • Protective function • Cleansing • Delegated • Morally dirty work is kept back-stage • Enables Justice Professionals to see themselves perform as they would prefer

22. Individualising & humanising roles of Reports you’re putting before the [judge] what you would describe as a sort of generic fabric within which you’re going to address, so he has a sort of feel for the human being before him. And it makes the procedures slightly more humane. [Interview, defence lawyer 8]

23. The Role of Reports in a display of Individualisation & Client Management Lawyer: Oh my, yes. Aye, it makes an immense [difference to] the client actually: you also enhance his esteem. That’s a marketing exercise, I may add, but as a marketing exercise you’re enhancing someone’s esteem. [Interview, defence lawyer 8]

24. Moral Cleansing Work Prepares Cases for Closure Disruptive / Resistant Facilitating / Compliant Admission Tactical / game playing In denial - Work to be done Accepts it’s Inevitable Responsibilised Transformation or implicit condemnation Closure • Straight denial (factual) • Threat of worse (trial tax, remand) • Unsure/confused • Fatalism / Arbitrariness • Conscious non-engagement • Exculpation / moral challenge • Open

25. Conclusions • Inform, advise, but also • Fortify boundaries and relative status • Elicits Tease attempts to apprehend • Generally (but not always) manage the gap problem enabling sense of moral closure • Largely legitimating but also reopen moral problems

26. Further Questions • Therapeutic/Cathartic for whom? • Are mass ‘free’ admissions universal? • Judicial Sense of PF by diff means? • Does Low sense of PF lead to legit strain? • Do PSIs make it more or less likely to ‘Punish in Bad Conscience’ • So what does this mean for Probation’s role in legitimating force (punishment)?

27. Questions? • Prof dr Cyrus Tata Centre for Law, Crime and Justice Strathclyde Law School, Scotland E: Cyrus.Tata@strath.ac.uk