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Criminal Justice Social Work After McLeish:

Possibilities and Pitfalls

Fergus McNeillProfessor of Criminology & Social

Work0141 950 3098

Fergus.McNeill@strath.ac.uk

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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

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The history of rehabilitationRotman (1990) Penitentiary

Reforming the sinner Therapeutic

Fixing the flawed Social learning

Educating the poorly socialised Rights-based

Reinstating the excluded

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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

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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)

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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

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Principles of the new rehabilitationists

1. The duty of the state to provide for rehabilitation

2. Proportional limits on the intrusions of rehabilitation

3. Maximising voluntarism4. Prison as a measures of last resort

(Cullen and Gilbert 1982; Rotman, 1990; Lewis, 2005)

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Contemporary rehabilitation?The ‘what works’ paradigm (forefronts intervention)

The desistance paradigm (forefronts the change process)

Intervention or treatment required to reduce re-offending and protect the public

Help in navigation towards desistance to reduce harm and make good to offenders, victims and communities

‘Professional’ assessment of risk and need governed by structured assessment instruments

Explicit dialogue and negotiation assessing risks, needs and strengths and resources; and exploring opportunities to make good

Compulsory engagement in structured programmes and offender management as required elements of legal orders imposed irrespective of consent

Collaboratively defined tasks which tackle risks and needs and target obstacles to desistance by developing the offender’s human and social capital

(McNeill, 2006)

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The use of community disposals in Scotland, 1932-2006

0

1000

2000

3000

4000

5000

6000

7000

8000

9000

1932 1945 1951 1959 1971 1977 1985 1995 1999 2003 2005

Probation

Community service950juveniles

2,600juveniles

Children'sHearingsintroduced

Impact ofNationalStandards

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

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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. 1. 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.

2. 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].

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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)

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Scottish Government

National Community Justice

Council

National Sentencing

Council

Scottish Prison Service

Parole Boardfor Scotland

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PRISONPunishing Serious Crime

Protecting the Public

THE COMMUNITY SUPERVISION

SENTENCEPaying Back in and to the Community

OTHER PENALTIESPaying Back

without Supervision

Paying Back throughRestriction of Liberty

Paying Back throughUnpaid Work

Paying Back by Working at Change

Paying Back Financially

Paying Back throughRestorative Justice

ConvictionAdmonitionFines, etc.

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STAGE 1:How much payback?

STAGE 2:What kind of

payback?

STAGE 3: Checking progress

and payback

The judge makes a judgement about

the level of penaltyrequired by the offence – with

information from the PF & defence agent

The judge makes a judgement aboutthe best form of pay back – with

input from the court social worker and

the offender

The compliance court holds the offender toaccount for paying back – recognising

progress and dealing with lapses and

setbacks

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Paying Back byWorking at Change

Drugs Use

AlcoholUse

Housing

Work andLeisure

Education and

Training

FamilyIssues

PersonalProblems

Mental and Physical

Health

MoneyProblems

OtherProblems

Attitudes, Values,Thinking

PeerPressure

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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)

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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)

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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?

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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)

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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).

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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?

26Safer, Stronger [and Fairer]

Retribution (but not ‘merely

punitive’ punishment)

Reparation Rehabilitation

CJSW

27Safer, Stronger [and Fairer]

Communities

Victims Offenders

Courts

CJSW

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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

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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?

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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.

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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