decision-making research: decision-making research: escaping the top-down mentality? offender...
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Decision-making research: Decision-making research: Escaping the Top-Down Mentality?
Offender Supervision and Decision-Making in Europe, Bratislava 2013
Prof dr Cyrus TataProf dr Cyrus Tata
Strathclyde Centre for Law, Crime and Justice, Strathclyde Centre for Law, Crime and Justice, ScotlandScotland
What are we trying to compare? What are we trying to compare?
Types of systems?Types of systems?Prevalent principles/ideologies?Prevalent principles/ideologies?Co-relations in decision-making? Co-relations in decision-making? Decision-making Decision-making processprocess??
Where are the gaps?Where are the gaps?
Boone & Herzog-Evans & assoc authors Boone & Herzog-Evans & assoc authors 2013:2013:
““The most striking finding from this literature The most striking finding from this literature review is that there is a paucity of research on review is that there is a paucity of research on the decision-making the decision-making processprocess itself, on the itself, on the influence that different agencies have on each influence that different agencies have on each other, and whether different construction/ other, and whether different construction/ organisation of d-m processes could lead to organisation of d-m processes could lead to different outcomes.” different outcomes.” [original emphasis retained][original emphasis retained]
Practice as a by-product of Practice as a by-product of bigger things?bigger things?
Top-Down Change more or less Top-Down Change more or less InevitableInevitable
A new configuration does not A new configuration does not fully and fully and finally finally emerge emerge untiluntil it is formed in the it is formed in the minds and habits of those who work in minds and habits of those who work in the system. the system. UntilUntil these personnel have a these personnel have a settled settled habitus habitus appropriate to the field, appropriate to the field, enabling them to cope with its demands enabling them to cope with its demands and and reproduce it reproduce it ‘as a matter of course’, ‘as a matter of course’, the process of change remains the process of change remains partial partial and incompleteand incomplete. . (Garland 2001 p. 24, emphasis added except (Garland 2001 p. 24, emphasis added except ‘habitus’)‘habitus’)
Sketch to colour in?Sketch to colour in?
Top-Down Assumptions are Top-Down Assumptions are hard to escapehard to escape
Top-Down Top-Down (Progressive/utopian)(Progressive/utopian) Top-Down Top-Down
(Regressive/dystopian)(Regressive/dystopian)
Top-Down Normative Binaries Street-Top-Down Normative Binaries Street-level research should try to Avoid level research should try to Avoid
Intellect vs EmotionIntellect vs EmotionExplicability vs IntuitionExplicability vs IntuitionRules vs DiscretionRules vs DiscretionReason vs emotionReason vs emotionPrinciple vs capricePrinciple vs capriceAct (offence) vs Actor (offender)Act (offence) vs Actor (offender)
Intellect vs IntuitionIntellect vs Intuition
Hostility to intuition as mystificationHostility to intuition as mystificationBut still explicableBut still explicablePre-dominance of ‘Analysis’ of ‘factors’Pre-dominance of ‘Analysis’ of ‘factors’
Factor analysisFactor analysis
Behaviorist S-R ModelBehaviorist S-R Model Quasi-mechanistic Quasi-mechanistic Variables with own discrete power (eg Hogarth Variables with own discrete power (eg Hogarth
71 – sentencing as an individual intellectual 71 – sentencing as an individual intellectual exercise)exercise)
Pull apart then try then to reassemble the piecesPull apart then try then to reassemble the pieces But how are ‘factors’ decided?But how are ‘factors’ decided? Weak on relational meaningWeak on relational meaning
Eg SISEg SIS
How to record and represent cases meaningfully to How to record and represent cases meaningfully to judges?judges?
Eg Multi-offence cases are not adequately recorded in Eg Multi-offence cases are not adequately recorded in official dataofficial data
Principal Offence not enough – add in info as individual Principal Offence not enough – add in info as individual factors – additive, piecemeal modelfactors – additive, piecemeal model
‘‘Whole Offence Approach’ - holisticWhole Offence Approach’ - holistic Offender not meaningfully represented Offender not meaningfully represented Need to merge into recognisable ‘Need to merge into recognisable ‘typified whole case typified whole case
stories’stories’
Principle vs caprice?Principle vs caprice?
The search for ‘coherent’ explanationThe search for ‘coherent’ explanation Why are Judges’ reasons so ‘incoherent’?Why are Judges’ reasons so ‘incoherent’? Coherent to whom and what? Coherent to whom and what? But penal-philosophical ‘incoherence’ is But penal-philosophical ‘incoherence’ is
subjectively coherent!subjectively coherent! Can you directly observe pure thought?Can you directly observe pure thought?Accounts - socially contingent (though not Accounts - socially contingent (though not
completely)completely)
Rules vs discretionRules vs discretion
Dworkin (1977) Dworkin (1977) Taking Rights SeriouslyTaking Rights Seriously
Why is Rules vs Discretion Why is Rules vs Discretion empirically misleading?empirically misleading?
Makes sense at level of public discourse but Makes sense at level of public discourse but not at routine street levelnot at routine street level
At street level, Rules & Disc not opposites, At street level, Rules & Disc not opposites, but mutually constituitive. but mutually constituitive.
Inter-play of ‘rules’ with ‘facts’ creates Inter-play of ‘rules’ with ‘facts’ creates meaningmeaning
Which applies to which?Which applies to which? ‘‘Discretion’ to expand or deny ‘discretion’!Discretion’ to expand or deny ‘discretion’!
Case construction Case construction
Starting pt for both inter- and intra-jurisdictional Starting pt for both inter- and intra-jurisdictional research? research?
Process makes casesProcess makes cases How are cases?How are cases? What are the ‘typified whole case stories’?What are the ‘typified whole case stories’? How are they understood by different penal How are they understood by different penal
actors?actors? Eg multi-perspectives on same infoEg multi-perspectives on same info Serial – pre and post cuesSerial – pre and post cues
Study of quality of Defence work Study of quality of Defence work (Tata 2007)(Tata 2007)
Multi-Perspective Research on same Multi-Perspective Research on same cases Eg Pre-Sentence Reports studycases Eg Pre-Sentence Reports study
Mr Laverty
• SER: Education/Employment. The accused began his education at [name] Primary School and transferred to [name] School at the age of 7 years because of learning difficulties. He reported he enjoyed school and found the smaller classes beneficial in comparison to mainstream education…. Conclusion. During the interview Mr [Laverty] was cooperative, although vague at times, although this may have been due to his perceived level of comprehension.
• Shadow Report Writing Diary: Tricia mentioned his learning difficulties because she wanted to highlight to the [judge] that the level of understanding may be an issue [diary case 25 Mr Laverty]
Skipping a point
Intv: ‘Education and employment’: anything interesting or valuable?
J5: All I picked up from that was that he hadn't worked for some time and I mean, that's possibly a problem.
J14: Yeah, for me all of this biographical material is useful in this kind of case.
Intv: What about, it's mentioned here, “his school behaviour suffered because of learning difficulties”[…] so how does the mention of that…?
J5: I have to say I skipped over that. [Focus group 7]
Mr LavertyMr Laverty
DiaryDiary [Immediately after] Mr [Laverty] [Immediately after] Mr [Laverty] leaves, [Tricia] sighs: “I’ll need to do a leaves, [Tricia] sighs: “I’ll need to do a home visit.” She’s not happy about the home visit.” She’s not happy about the amount of information she received…..amount of information she received…..
[After the home visit to Mrs Laverty] On the [After the home visit to Mrs Laverty] On the way back in the car, [Tricia] tells me that way back in the car, [Tricia] tells me that she found the meeting very useful. Useful she found the meeting very useful. Useful in that it confirmed much of what he had in that it confirmed much of what he had said about his own circumstances; about said about his own circumstances; about what happened during the offence; and what happened during the offence; and about his reluctance to access services. about his reluctance to access services. [diary post home visit, case 25][diary post home visit, case 25]
Corroborating accountsCorroborating accounts
““Basis of Report. Basis of Report. This report is based on one interview with This report is based on one interview with the accused in the Social Work Department and one the accused in the Social Work Department and one interview with his wife at her home.interview with his wife at her home.
Both Mr and Mrs [Laverty] described a good marital Both Mr and Mrs [Laverty] described a good marital relationship, and stated that difficulties seem to arise relationship, and stated that difficulties seem to arise when they have both been drinking. [The report then when they have both been drinking. [The report then alternates between information provided by Mrs then Mr alternates between information provided by Mrs then Mr Laverty. […] Laverty. […]
ConclusionConclusion : During interview Mr [Laverty] was cooperative, : During interview Mr [Laverty] was cooperative, although vague at times […] However, his wife confirmed although vague at times […] However, his wife confirmed some of his statements, which indicated he had been some of his statements, which indicated he had been truthful […]”truthful […]” [SER southpark case 25][SER southpark case 25]
Corroborating AccountsCorroborating Accounts J5: Well I was horrified J5: Well I was horrified that the wife was that the wife was
interviewed at the same time as the accusedinterviewed at the same time as the accused. I . I think that's very bad practice.[…] So I have to say I think that's very bad practice.[…] So I have to say I was seriously unimpressed with this report. was seriously unimpressed with this report. [emphasis [emphasis added] added]
J 14: I agree, uh-hu.J 14: I agree, uh-hu. J 5: It's really astonishingly bad practice to J 5: It's really astonishingly bad practice to
interview him alongside the wife. And if she is the interview him alongside the wife. And if she is the victim of serious domestic abuse then of course victim of serious domestic abuse then of course she's going to support him because she's caught in she's going to support him because she's caught in a trap with him. She's not going to have the a trap with him. She's not going to have the confidence or the self-esteem to contradict him. So confidence or the self-esteem to contradict him. So I think this one is very bad practice. […]I think this one is very bad practice. […]
J 14: I agree that she should have been seen J 14: I agree that she should have been seen independently…. I think that these things ought to independently…. I think that these things ought to be done because be done because the wife may have been the wife may have been intimidated by his presence, so agree with you, intimidated by his presence, so agree with you, that is not appropriate and she should have been that is not appropriate and she should have been seen privatelyseen privately [emphasis added] [emphasis added]
Corroborating AccountsCorroborating Accounts
J5: He doesn’t realise how lucky he is to J5: He doesn’t realise how lucky he is to have such a supportive wife.have such a supportive wife.
J 14: I think the jury's out with the social J 14: I think the jury's out with the social worker as to whether or not this is a worker as to whether or not this is a serial abuser or whether or not there's serial abuser or whether or not there's potential for [change]. potential for [change]. And the fact And the fact that the wife was therethat the wife was there and he has and he has made the right noises and he's never made the right noises and he's never had probation before had probation before would tilt me in would tilt me in that directionthat direction to give it a chance. to give it a chance. [Focus [Focus Group 7, emphasis added]Group 7, emphasis added]
ConclusionsConclusions
We won’t understand street level decision-We won’t understand street level decision-making making processesprocesses if we import top-down if we import top-down assumptions assumptions
Process Constructs CasesProcess Constructs CasesTypified Whole Case StoriesTypified Whole Case StoriesMulti-perspectivesMulti-perspectivesMulti-moment decision-makingMulti-moment decision-makingReasons will be ‘incoherent’Reasons will be ‘incoherent’
A few ReferencesA few References
Beyens K and Scheirs (2010) ‘Encounters of a different kind’ Punishment and Society 309-328 Boone, M and Herzog-Evans, M. (2013) ‘Offender Supervision and Decision-Making in Europe in
K.Beyens and F.McNeill (2013) Offender Supervision in Europe (Palgrave) In press. Cheliotis, L. (2006) ‘How Iron is the Iron Cage of New Penology?’ Punishment and Society 8(3):
313-340 R. Dworkin (1977) Taking Rights Seriously (OUP) Garland, D. (2001) ‘The Culture of Control’ (Oxford: Oxford University Press) McNeill, F, Tata, C., Hutton, N. Halliday, S (2009) ‘Reconfiguration and Hysteresis’ McNeill, F, Tata, C., Hutton, N. Halliday, S (2009) ‘Reconfiguration and Hysteresis’ Punishment & Punishment &
Society: The International Journal of PenologySociety: The International Journal of Penology Vol. 11 No.4 pp 419-442 Vol. 11 No.4 pp 419-442 C. Tata (2007) ‘In the Interests of Commerce or Clients? Supply, Demand, and “Ethical C. Tata (2007) ‘In the Interests of Commerce or Clients? Supply, Demand, and “Ethical
Indeterminacy” in Criminal Defence Work’Indeterminacy” in Criminal Defence Work’ The Journal of Law & Society The Journal of Law & Society Vol.38 No. 4 pp 489- Vol.38 No. 4 pp 489-519. 519.
Tata, C. (2007) ‘Sentencing as Craftwork and the Binary Epistemologies of the decision process’ Social and Legal Studies 16: 425-447
Tata, C., Burns, N., Halliday, S., Hutton, N., McNeill, F. (2008) ‘Assisting and Advising the Sentencing Decision Process: the Pursuit of “Quality” in Pre-Sentence Reports’ British Journal of Criminology 48: 835-855
