The Management of Change in Criminal Justice

Who Knows Best?

Martin Wasik, Sotirios Santatzoglou, Martin Wasik, Sotirios Santatzoglou

• Publisher: Palgrave Macmillan
• Year: 2015
• ISBN:
  9781137462497
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

This book explores the critical questions of how and why criminal justice policies emerge, and examines how criminal justice policy is understood and applied by practitioners. It questions whether diversity in implementation implies policy failure or a sign of healthy activism among local practitioners.lied by practitioners.

1

Who Knows Best? A Question About How Criminal Policy Change Takes Place

Sotirios Santatzoglou and Martin Wasik

Introduction

In defining the tasks of criminology, Sutherland pointed to an examination of ‘the processes of making laws, of breaking laws, and of reacting toward the breaking of laws’ (Sutherland et al., 1992, p. 3). This ‘still hard-to-beat definition of the field’ (Loader and Sparks, 2011, p. 13) shows that the question of crime, and the responses to it, also encompasses the issue of how policy and practice decisions about crime are made. The examination of the how question is significant, because the way that policy and practice decisions are made shapes the content of those decisions and, in turn, the scope and limits of criminal justice. The how question becomes particularly important when policy and legislative initiatives are of a strategic nature; namely, when they attempt to bring change or significant development in the operation and scope of criminal justice, in order to increase its efficiency, effectiveness and public legitimacy. Examination of the how question, therefore, is central to the study of the procedural legitimacy of strategic policy initiatives. The suspended sentence in English law is a simple but useful example. The Criminal Justice Act 1991, consistent with the government’s general policy objective at that time of securing proportionality and ‘desert’ in sentencing, restricted the power to pass a suspended sentence to ‘exceptional circumstances’ only. This had an immediate and dramatic impact on practice, rendering the sentence effectively a dead letter from 1991 to 2003, when the policy was reversed and the legislative restriction was removed.

Notwithstanding the centrality of procedural legitimacy, a further point is that, in a number of cases, those initiatives may not be successfully implemented, or they may fail their strategic intentions. In the language of organisational theory, they are unsuccessful because they ‘fail to yield [the] intended results’ (Kiliko et al., 2012, p. 81). When legislative policy initiatives fail to produce their intended results, there may be an issue about the process which underpinned the formulation of the intended criminal justice change – in particular, how the questions for change were framed and whose initiatives and ideas became part of that process. An examination of these decision-making issues in criminal justice does not suggest that ‘[policy] ideas have a life of their own’ (John, 2012, p. 142). Instead, it reveals both the forms of knowledge and the processes of knowing, which underpin policy perceptions of crime and the responses to it at a given historical time. In this way, the question of change in criminal justice becomes a question of cognitive management of the policy process, of knowing both the need for and the scope of change. In particular, it becomes a question about the policy-makers whose perceptions and concerns dominate the formation of change. It is also a question about the power of practitioners to implement (or not) policy change on the ground, to give it a shape which will faithfully reflect (or not) the policy intentions. These processes are worked out within, and by reference to, particular historical moments or periods. The suspended sentence again is an example. That sentence, introduced into English law in 1967 and re-branded several times since, was always intended by policy-makers to drive down the use of immediate imprisonment, but the sentence has persistently failed to deliver that result. In many cases, judges and magistrates use the suspended sentence as an alternative to a community order, rather than as an alternative to custody (Ashworth, 2010, p. 303). This is not a case of deliberate subversion by practitioners of policy intentions. It has much more to do with a degree of ambivalence in the underlying rationale of the sentence, and the way in which practitioners (here judges, magistrates and probation officers preparing pre-sentence reports) tend to focus on the sentencing options available to best fit the needs of each particular defendant, rather than considering an overall policy objective.

During the period when the essays for this book were being written, a major restructuring of the probation service had been put in train, based upon the coalition government’s ‘transforming rehabilitation’ agenda (Ministry of Justice, 2013). One of the problems addressed by the reform has been long-standing concern over the ineffectiveness of short prison sentences, not least the fact that these offenders have been released at or before the half-way point of their sentences with no supervision or support from the probation service (Johnston and Godfrey, 2013). The influential Halliday report in 2001 described this problem as ‘one of the most important deficiencies’ in the sentencing system (Halliday, 2001, p. 22). A policy initiative in the Criminal Justice Act 2003, to enable the probation service to provide such support (so-called ‘custody plus’), has since been abandoned as too expensive. The transforming rehabilitation agenda tackles this same problem in a different way – by contracting with firms in the private sector to provide supervision of those released from short sentences on a payment by results basis (results being measured by change in expected reconviction rates of offenders). On the back of this development, however, the policy has been taken much further, with the majority of the community sentence supervisory functions of the probation service also being transferred to private contractors (Neilson, 2012). Broad and Spencer (this volume) discuss the policy framework which has apparently led to this dramatic (and in the views of many, unnecessary and regrettable) change. They argue that ‘the transforming rehabilitation agenda … is a policy devised around … a neoliberal ideology that can be seen to have failed across a number of [other] policy areas’. It is certainly possible that the transforming rehabilitation agenda may fail to deliver the measurable beneficial outcomes which it claims to be able to achieve. The policy may also have unintended consequences in practice. One rationale for legislating to ensure that short sentence prisoners (those serving sentences of up to two years) receive a total period of 12 months under supervision/on licence following release is a policy initiative to restrict the use of such sentences. Defence practitioners will no doubt argue, once supervision requirements are in place, that short sentences are more onerous than before, and hence should be imposed less frequently. Judges and magistrates may, however, take the view that a short sentence followed by supervision and support is a much more attractive option than a short sentence with no supervision and support, so that such sentences may turn out to be used more often. As with the suspended sentence, this would not be a case of judges and magistrates deliberately thwarting a policy aim. Judges and magistrates focus on the case before them, identifying the best approach to be taken for each individual, rather than considering the overall policy objective, even if that were entirely clear. Policy, in terms of actuarial justice and public management is predominantly concerned with collectives and associated costs, rather than individuals.

Variations in practice as a policy problem

In his 1961 book In Search of Criminology, especially in the closing chapter ‘Conditions for Achievement’, Radzinowicz reminded criminologists that ‘probation, the Borstal system, the juvenile courts and several other innovations … have evolved, on the whole, under the influence of growing social consciousness, of religious movements, and philanthropic stimulus, some from temporary measures, or just from straightforward common sense, supported by experience’ (1961, pp. 178–179). Radzinowicz’s observation captures the historical and organisational complexity of change and development in criminal justice. It provides a warning to criminologists of the limits of theoretical criminological knowledge, and asserts the importance of understanding the practice of criminal justice. Radzinowicz said that ‘one of the best ways for criminologists to maintain an empirical and realistic attitude is to remain in close concert with those engaged in the administration of criminal justice’ (1961, pp. 178–179). In this way, Radzinowicz placed the practitioners who implement criminal justice in practice as central to criminal justice development and as crucial to the development of criminological understanding. A range of subsequent studies have taken up Radzinowicz’s advice and have addressed the role of practice in criminal justice development. These accounts have, however, differed widely.

Several of the key early research studies regarded the dynamics of practice as part of the problem which needed to be addressed. In 1962, in his book Sentencing in Magistrates’ Courts – A Study in Variations of Policy, probably the first study in the country which employed fieldwork methods, Hood examined the question of ‘equality of consideration’ before the law; in particular ‘that similar general considerations should be taken into account when a [sentencing] decision is made’ (1962, p. 14). The study pointed to a serious problem of inconsistency in the way that justice was dispensed. He observed that ‘frequently [sentencing] decisions are reached with the aid of “experience” ’, but that magistrates ‘have, in most cases, very little information on which to base their decisions’ (Hood, 1962, p. 92). Hood concluded that ‘there is evidence to suggest that their actions are, to some extent, related to the type of community on whose behalf they are acting, and to their personal views on what is the best way to deal with offenders’ (Hood, 1962, p. 78). Hood’s distrust of the judicial function in relation to sentencing practice can also been seen in the equally famous 1977 study by Baldwin and McConville, Negotiated Justice: Pressures on Defendants to Plead Guilty, which examined the circumstances in which defendants who asserted their innocence might come under pressure from their lawyer, and the judge, to save the court’s time by pleading guilty. The authors began by noting that ‘if plea bargaining exists in England, it has certainly been well hidden from researchers’. On the other hand, ‘a casual visit to the Birmingham Crown Court would rapidly dispel the misconception that plea bargaining scarcely exists in English courts … barristers, police officers and others refer to the “deals” that have been struck’ (Baldwin and McConville, 1977, pp. 18, 24).

So concerned were the legal authorities by this research that serious efforts were made to suppress its publication. Other accounts expressed distrust and pessimism about the administration of justice and its future. In 1983 Morris’s paper ‘Legal representation in providing criminal justice for children’, written in the wake of non-implementation of the progressive aims of the Children and Young Persons Act 1969, the author found that ‘[r]esearch on the English juvenile justice system indicates a system in confusion. Certainly, one cannot talk about the system’ (1983, p. 131). In 1985, in the same pessimistic tone, Burney’s book Sentencing Young People – What Went Wrong with the Criminal Justice Act 1982? was an empirical study of the effect of implementation of that act upon juvenile justice practice. Burney pointed with regret to ‘[t]he sheer variety of custom and practice [as] such a strong feature of our criminal justice system’ making it ‘almost inevitable that the absorption of statutory change will equally vary in style and consequences’ (1985, p. vi). Morris and Burney’s pessimism may have been premature, since by the end of the 1980s local juvenile justice practice had been transformed and had become much more in tune with the spirit of the 1982 act (Windlesham, 1993 Telford and Santatzoglou, 2012). It seems the transformation was, however, achieved through strategic local inter-agency developments, rather than by additional policy drivers from the centre.

The research studies mentioned above, and of course many others, have provided a wealth of information about the world of criminal justice practice. In general, they have regarded it as a mechanism for implementation, which has delivered (or failed to deliver) the intended policy change, rather than as a world with its own characteristics, which can be innovative, and which should be explored and understood. Those studies in general portrayed the decision-making of lower practice levels of justice as part of the problem, to be rectified through further top-down policy interventions, rather than as part of the solution in criminal justice development. One example is sentencing guidelines, especially in the magistrates’ courts. Sentencing guidelines were developed to address the issue of unjustified disparity in outcome from one magistrates’ court to another, but it is often forgotten that guidelines were first developed and implemented locally by magistrates and justices’ clerks in the 1980s. They did not have binding force until 2003, when sentencing guidelines for all courts were placed on a statutory footing. Sentencing ‘consistency’ is a difficult thing to measure statistically, given that consistency of approach is not the same thing as uniformity of outcome. According to Tarling (2006), part of the solution to the problem of magistrates’ sentencing variations was for the Sentencing Guidelines Council ‘to monitor the use [of guidelines] to ensure that they are being properly applied’ (Tarling, 2006, p. 40). While the Sentencing Guidelines Council regularly published statistics showing local sentencing outcomes, it is very difficult to identify local ‘best practice’ in sentencing. This is because English guidelines (unlike US ones) are inherently flexible, recognising that facts can vary considerably within any given offence category, and according proper respect to local decision-makers to weigh those particular facts within a nationally agreed framework. The issue of disparity has to be addressed locally, through training, as well as by clear guidance from the centre. The internal dynamics of the practice world is as important in this context as any other, and magistrates need to feel that they have ownership of, or at least influence over, the guidelines which they use: guidelines should be generated ‘with’ rather than ‘for’ the courts. Writing in the context of differential fine levels in the magistrates’ courts, Raine and Dunstan (2009) describe a rich picture of practice factors which influence the ways in which financial penalties are implemented locally – widely varying economic conditions, a sense of local justice, the need to preserve discretion, complexity in applying key terms in sentencing such as ‘serious’ and ‘proportionate’ and a ‘lack of confidence in some courts about the reliability and general quality of information available to them’ (2009, pp. 29–30).

In the different context of youth justice in Wales, Field (this volume) says that ‘the very nature of negotiated local practice means that there is significant variation in youth justice cultures in both Wales and England’. Practitioners naturally focus on local justice rather than national policy. Justice is seen as being delivered by a local team, or in a local centre, rather than as part of a national structure or pattern. As one circuit judge has put it (Compston, 1994):

The justification for local justice surely lies in this – that only by breaking justice down into manageable units can it work effectively, for the defendant, the victim and the community. It implies closeness to the community and responsibility to the community. Only by dealing with matters locally will any sense of mutual responsibility be restored.

Overall, though, the last 20 years has been a story of increasing centralism in criminal justice, with a steady loss of autonomy amongst key local agencies (the police, the courts and the probation service). Raine (2014, p. 408) has said that:

centralisation needs to be understood in the context of wider public sector developments. The advent of new public management (NPM) gave primacy to issues of efficiency and parsimony in resource usage and promoted competition and the disciplines and styles of management associated with the private sector. Under New Labour this widened to encompass stronger concern for the modernisation of public services as a whole through stronger ‘customer-centricity’ and more ‘joined-up’ approaches across the sector. The centre [had a] strongly held conviction that ‘top down’ direction and unitary organisational form would be the best way to achieve greater efficiency.

Many of the essays in this volume touch upon this issue of central-local relations. For example, Gibbs laments the erosion of local influence at magistrates’ courts level, despite those courts having been regarded traditionally as the epitome of local justice. In the 1980s there were 600 local magistrates’ courts, each serving a petty sessional division. A series of administrative reforms has taken place since then, driven in the name of ‘modernisation’, resulting in the closure of two-thirds of those courts by 2010. There have been many different strands here, including the abolition of local magistrates’ courts committees and their replacement by a national administrative structure for all courts, and the employment of more professional judges in place of lay magistrates. There has also been a significant reduction in workload as a result of increasing use of diversionary cautioning schemes. In this volume, Wasik examines the extent to which local justice endures amongst Crown Court judges despite the degree of central control emanating from nationally formulated guideline rules on criminal procedure. Both issues touch upon the important constraint of judicial independence in the context of managerial change. Despite all this centralisation, and probably as a reaction to the pervasive power of Westminster, over the same period there has been an important push towards the devolution of political power to Scotland and to Wales, and perhaps in due course to some of the English regions. In the context of criminal justice policy development post devolution, two contributions to this volume, Morrison’s chapter on community justice in Scotland and Field’s chapter on youth justice in Wales, are especially illuminating. According to Henry, ‘institutional spaces do matter, and have mattered, in framing and underpinning the ways in which crime, justice, security and safety have been imagined’ (2012, p. 416). One example of the critical importance of an institutional space is provided by Morrison (this volume) where she explains the importance of the delivery of community justice in a devolved Scotland being located within local authority...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• Preface
• List of Contributors
• 1. Who Knows Best? A Question About How Criminal Policy Change Takes Place
• Part I: Making Policy Choices
• Part II: Developing Policy Through Practice
• Part III: Managing Policy Implementation
• Index