The political dynamics of criminal justice policy 9
4. Theological Foundations and Principles of Justice 12
Christianity and the threefold view of punishment 12
From punishment to restoration 13 Incapacitation 15
The aims of sentencing 16
5. Crime, Responsibility and Relationships 18
“Am I my brother’s keeper?” 19
Victims and restorative justice 21
6. Crime, Disorder and Respect 23
The threat to civility and the search for respect 23
Shared local responsibility for crime prevention 24
7. Escaping from Prison 27
Imprisonment and community sentences 27
Failing the vulnerable and victims of injustice 30
8. Offender Management 34
The brave new world of NOMS 34
Faith in offender management 35
9. Christian Responses and Resources 37 Examples of Christian involvement in criminal justice concerns 37
10. Conclusion 40
TAKING RESPONSIBILITY FOR CRIME
1: Criminal Justice in Crisis?
Our criminal justice system at the centre of intense controversy about its strategy, efficiency and responsiveness (1-4); the Christian contribution (5); the importance of responsibility (6).
1. Crime is a central preoccupation of contemporary politics, mass media and everyday life. It represents both an area of deeply-felt vulnerability in generally prosperous and secure societies and a profound challenge to the aspiration of government to promote a safe, decent and just social order. The ways in which government responds to criminal behaviour generate strong feelings and intense debates stemming in part from differing moral priorities. At present the criminal justice system in England and Wales is perceived to be forfeiting public confidence, particularly on account of anxieties about the supervision of dangerous offenders but also through a general impression of ineffectiveness. Behind the headlines lies a situation of instability and uncertainty following years of well-intentioned and ambitious reforms. These have left criminal justice professionals overwhelmed as they attempt to implement a copious stream of new laws and policies.
2. Concerns about the effectiveness of the system may be classified under three headings: strategy, efficiency and responsiveness. Much of the controversy of recent months has centred on major breakdowns in efficiency: that is, confusion, lack of communication and negligence in implementing policies which were agreed to be necessary. The particular issues exemplify broader concerns about a system that is often slow, cumbersome and badly co-ordinated. Not only the prison and probation services but the police and the courts struggle to discharge their functions in the face of overload, inadequate resources and low morale. It seems as though the system is unable to manage the demands made upon it, and is therefore forced to reduce its goals to what it can deliver rather than what would be desirable. The result is often to encourage attitudes of impunity on the part of some offenders, and to leave victims of crime frustrated. These structural strains form the background to the topics examined below, and particular reference will be made to the plans for offender management which aim to alleviate them.
3. Charges of inefficiency (like the description “unfit for purpose”) might seem to presuppose agreement on strategy. However questions about means and ends cannot be separated so easily, because the means chosen, like imprisonment, have implications for what can be achieved. Many of the arguments about “mismanagement” quickly lead into serious questions about whether the objectives of criminal justice policy are clear, coherent and appropriate to the challenges it faces. This report will discuss the proper objectives of the system and how in broad terms they might be pursued.
4. The term responsiveness refers both to the capacity of the system to adapt to new challenges, such as the recent increase in knife and gun crime, and its ability to engage with the concerns and demands of the public, whom it exists to serve. Much has been done to develop new patterns of working such as the reforms to the youth justice system in the late 1990s and the creation of the Serious and Organised Crime Agency (SOCA) in 2005, but inevitably it is the areas of weakness that attract most comment. In responding to the public, consultation and accountability operate through a number of channels, including Parliament, the criminal justice inspectorates and local partnerships, but there are widespread feelings of being let down by the system and not being listened to, which help fuel popular attitudes of punitiveness. Those who administer the system must respond to public concern while being honest about the difficulties and dilemmas of dealing with crime. No other public service has to deal with “clients” who are by definition – at least initially – working against its aims.
5. The Christian churches have a distinctive part to play in this situation, both in action and reflection. Many Christians work professionally within the criminal justice system, making a positive contribution to its ethos and operation as police, probation and prison officers, magistrates and judges, administrators and civil servants, and in many other roles. Some Christians have experienced the system as offenders. Many more have family members or close friends who have been or are offenders. Christian organisations and volunteers are also heavily involved in work with offenders (but less frequently with victims), both in prisons and in the community. This activity is inspired by the wealth of insight and experience that the Christian tradition offers on matters of crime, justice and redemption from evil. Christian theology and ethics have shaped the development of our criminal justice system, largely for good, and continue to do so.
6. The title of this report reflects a theme which runs through many aspects of criminal justice policy. The present Government has laid stress on the importance of responsibilities in society as a counterpart to rights. It must be a condition of reducing re-offending that individual offenders should take responsibility for their actions, both in the past and in the future. However, much that is done to offenders within the criminal justice system – particularly in prison – makes it less, rather than more, likely that they will assume responsibility, and insofar as this happens it may be said that society and its agencies are failing in their responsibilities. Again, the Government has commended the model of active citizenship and is seeking to bring members of local communities and the voluntary sector into partnership with criminal justice professionals in reducing offending and anti-social behaviour. This raises further questions about sharing responsibility for countering crime.
2: Crime and the Public
The problem of determining accurately levels of crime and trends over time (7-10); the relation between public attitudes to crime and the influence of mass media (11-14).
7. Surveys suggest that most members of the public believe that in recent years crime has increased dramatically. Fierce arguments rage about trends in crime statistics and their significance. These arguments are not merely political, in the sense of attributing praise or blame to government; there are substantial problems in discovering what is “really” happening. The official criminal statistics for England and Wales recorded the number of offences notified by the police. Property offences make up over 70% (theft and handling stolen goods, criminal damage and burglary), with offences against the person the next largest category (about 15%). Robbery and sexual offences are relatively low, though they now tend to be grouped with other “violent offences”. The figures are crucially affected by the rate of recording of incidents by the police and (especially) the rate of reporting by the public, which vary considerably according to the circumstances and consequences of each incident. There is therefore a huge amount of “hidden” crime, though most of it appears to be comparatively minor.
8. Of these recorded offences, only a small proportion is dealt with by the courts. The average clear-up rate for offences in England and Wales is about 25%, (but in the region of 90% for homicide, 60% for violent offences and 12% for burglary). When offenders are detected, decisions may be made not to prosecute, or to caution, or to divert a young offender from the criminal justice system. When conviction rates are taken into account, it has been estimated that only about 2-3% of the offences that take place result in a conviction in the courts. It is clear that improving the rate of detection should be a major priority, both for its own sake and to increase the risk of offending leading to punishment and remedial action. However, this shows the dilution of the impact of sentencing upon “real” as opposed to recorded offending.
9. The recorded statistics are problematic both in giving a snapshot of crime and in charting trends over time, partly because definitions of offences and recording requirements change. Since 1982 the Home Office has regularly undertaken a national survey of households, the (now annual) British Crime Survey, in an attempt to discover the pattern of crime actually experienced. This produces a fuller picture than the official statistics, but also has its problems. A major weakness is that it covers crimes against households but not those against commercial properties. It reveals that many more crimes occur than the official statistics record, but that most of them are much less serious in terms of injury, damage and financial loss than those reported. Together the official statistics and the BCS point to a steady rise in overall crime between the 1960s and early 1990s, with substantial falls thereafter in property offences and some violent offences. Short-term changes are difficult to trace reliably, but the figures support neither an apocalyptic view of rampant increases nor a complacent conclusion that crime is being brought under control. It remains unacceptably high; its impact on people and society is grievous and destructive.
10. The broad averages produced by national statistics need to be set alongside local crime surveys. These bring out the extent to which crime is concentrated in small areas of urban deprivation and how particular forms of crime are suffered disproportionately by specific social groups. For example, young people are often stereotyped as perpetrators of violence, but they are more likely than other age groups to be victims. According to the BCS in 2004-5, 12.6% of males aged 16-24 suffered a serious assault compared with the average for all adults of 3.4%. Some forms of crime, like sexual assaults on women, are under-represented in standard surveys and are better traced by self-reporting techniques. There are also difficulties in recording multiple victimisation and offences against marginal groups such as homeless and mentally ill people. The pattern of victimisation, like the pattern of offending, is affected by social inequalities.
Public attitudes to crime
11. The relation between the reality of crime and perceptions of it – and especially fear of it – is complex. It is sometimes said that people tend to overestimate their personal vulnerability to crime. The stereotypical victim of violence is older and female, but statistically – as we have noted – is more likely to be younger and male. Yet true as this may be, expectations are shaped by social experience, and the impact of crime varies with personal circumstances. Older people and women may understandably feel more vulnerable to street violence from a sense of relative powerlessness, whatever the objective probabilities. Furthermore, attitudes to crime appear to be shaped by mass media representations, which play a large role in the politics of crime and punishment.
12. Fictional television portrayals of crime can be highly misleading. Research shows that they feature much higher levels of homicide and violent crime than in real life, and much lower levels of property crime. However, the property crimes shown tend to be more dramatic and violent than in reality: most property crimes involve relatively little loss or damage and – notwithstanding their emotional impact – no physical threat or harm to the victim. “White-collar” crime rarely makes an appearance, as it is relatively invisible and intangible despite its costliness. Murder tends to be calculated rather than spontaneous, and rape is usually perpetrated by psychopathic strangers rather than people known to the victim. Clear-up rates are also much higher in fiction than in reality. These portrayals offer a somewhat skewed impression of crime and offenders which may affect public attitudes to policy.
13. Factual reporting of crime is affected by news values, accentuating dramatic individual events at the expense of broader analysis, and reporters are dependent upon the police and other institutions for much of their information, which affects the dominant frameworks of interpretation. The pattern of reporting tends to entrench a stereotyped view of the “war on crime” carried on through policing, punishment and prisons. Probation enters the picture mainly through stories about ineffectiveness in preventing re-offending or protecting the public, and most people are poorly informed about the operation of non-custodial sentences. At intervals, intensive media activity generates what sociologists term “moral panic”, in which a single case becomes the focus for expressing fear about crime and demanding “tough” action by the authorities. Prominent examples were the abduction and murder of James Bulger (by two older children) in 1993, and of Sara Payne in 2000, and the controversy over the sentencing of the child abductor and paedophile Craig Sweeney in 2006.
14. The effect of the mass media upon public attitudes is much debated. It remains true that people evaluate media presentations in the context of their everyday experience, including experience of crime. Nevertheless, reporting and representation of crime help to maintain generalisations which are exaggerated and misleading. The tendency to speak of “crime” in the aggregate conceals many significant variations. Concentration upon violent offences like robbery, aggravated burglary, rape, serious assaults and sensational high-profile murders can suggest that all offenders are dangerous, ruthless and “incorrigible” – to use a term favoured in the late nineteenth and early twentieth century when it was assumed that there was an innate difference between “criminal types” and normal people. This polarisation re-appeared in the Home Office Reform Plan of July 2006 which made a sharp distinction between “ordinary, law-abiding people” (and even “ordinary, law-abiding families”) and those who, in the Home Secretary’s words, “seek to undermine and destroy our way of life” – here not terrorists, but offenders in general. Yet a large proportion of offenders are weak and sad characters, broken by their experience of life. The inference that the only effective way of dealing with such people is to exclude, incarcerate and incapacitate (i.e. “disable”) them is a huge mistake and a disastrous wrong turn for criminal justice policy.
3: Risk and the Politics of Fear
Social and political factors which drive criminal justice policy towards an excessive desire for security and control: the place in today’s society of risk management (15-18); pressure on government to appear “tough” on offenders regardless of the effects (19-26).
Risk, protection and prevention
15. The desire to exclude is underpinned by a number of social and cultural developments often discussed under the heading of “risk”. Modern technology has produced massive increases in private security arrangements whose aim is to remove the opportunities for committing crime (mainly property crime, but also offences against the person in public spaces by mean of surveillance). Parodoxically, in modern societies where many historic threats to security and well-being have been eliminated or minimised, there is heightened awareness and increased anxiety about the risks that remain. Crime features high among these, and this encourages a shift from “administering justice” to “public protection” as the “core business” of the criminal justice system – a statement which appeared in the Home Office Reform Plan.
16. It is of course true that crime control and public protection have always featured among the goals of criminal justice policy, both in policing and sentencing, Nevertheless, classical criminology and penology, often backed by Christian beliefs about human freedom and dignity, treated the offender primarily as a rational agent who could be influenced by the prospect of punishment or helped and encouraged to change his – mostly “his” – attitudes and behaviour. An excessive concentration on the protective function threatens both justice and the principle that the offender or potential offender remains a citizen and is not deprived of all civil rights. The current argument over the restoration to prisoners of the right to vote is a litmus test of the application of this principle.
17. Recent years have seen the development of an “actuarial” approach to offending which draws on the extensive information available to construct profiles of risk and protection factors – that is, characteristics of offenders which either increase or reduce the probability of their re-offending. These have entered into probation practice in its efforts to promote desistance (i.e. refraining) from crime, and have shaped the construction of OASys (the Offender Assessment System) which will be a key tool of the new National Offender Management Service (the choice of title for this product of the merger of the prison and probation services is significant). Such information is of great use in refining methods of modifying offending behaviour, but there is a danger of using it to classify offenders and to determine their treatment, not by what they themselves have done or might do, but on the basis of the behaviour of larger populations which is not an accurate predictor of the behaviour of the individual.
18. More broadly, the emphasis on risk management may spill over into demands for risk control, with the risk to the public of re-offending being assessed hyper-cautiously and given priority over all other considerations. The 1991 Criminal Justice Act introduced public protection into the criteria for sentencing, and the 2003 Act introduced mandatory life sentences for serious offenders and indeterminate sentences for the purpose of public protection. This is a substantial modification of the principle of sentencing according to desert (which was also stated in the 1991 Act) and raises fundamental questions about the justification of punishment, both generally and in particular cases. Put simply, to what extent are offenders to be subject to sanctions on the basis of what they have done, and how far on what they might do in the future?
The political dynamics of criminal justice policy
19. Considerations of risk need to be set in the current political context, in which the Government feels under pressure to protect the public against people judged to be dangerous – not only violent offenders but mentally ill people and, more recently, terrorists. There is in each of these areas a case for shifting the balance between liberty and security, in order to remedy inadequacies in the law and to take account of new kinds of threat, but also considerable peril of undermining basic human rights such as the presumption of innocence and the deprivation of liberty by due process. The insidious tendency to introduce new forms of restriction and detention on the plea of public safety must be carefully monitored and evaluated, and where necessary opposed. In many cases it is arguable that what is needed is not more repressive laws and policies but more efficient operation of those that already exist, particularly in sharing of information and collaboration between public agencies.
20. The other major pressure on government is the need to be seen to be ‘tough’. This begs many questions about what is effective in preventing offending. It forms part of a way of thinking and speaking that portrays criminal justice as a battle against an enemy and employs aggressive or even violent metaphors (e.g. ‘gripping’ offenders, as in the 2006 Home Office Reform Plan). Undoubtedly there is an adversarial and coercive aspect to criminal justice – epitomised by the traditional symbol of the sword of judgment, to which St Paul refers in Romans 13. However, purely coercive and exclusionary solutions are unacceptable and impractical, since almost all offenders must sooner or later live in the community. Although it will not always be attainable, the ultimate aim of dealing with offenders should be to “reconcile” them with the society to which they belong and from which they have become alienated. Toughness and even severity may be required in the course of tackling crime, but they must be combined with such qualities as wisdom, imagination, generosity and perseverance if it is to be overcome rather than merely suppressed.
21. The rhetoric of warfare and toughness may also produce distortions in public perception which feed back into the expectations of politicians. The widespread belief that sentencing is over-lenient, often based on skewed reporting of untypical cases, runs contrary both to statistics on the increased incidence and length of custodial sentences in recent years, and to the judgments of members of the public themselves when invited to take part in hypothetical sentencing exercises. Moreover, when asked more precise questions or invited to take part in more deliberative processes, as in the opinion research undertaken in 2001 for the Rethinking Crime and Punishment project, the public often reveal more nuanced and less punitive attitudes to the causes of crime and appropriate responses – for example, in prioritising care for juvenile offenders and treatment for drug addicts over punishment.
22. There is a tension in modern criminal justice policy verging on incoherence. On one side, government administers a system which attempts to base itself on empirical evidence and the professional judgment of those working within it. On the other, politicians react emotively in response to what is thought to be the state of public opinion. In some respects, this is a healthy tension, since the criminal justice system must command public confidence, and as recent events show, there is a need for accountability in cases of manifest failure. However, at many points it results in a confinement of policy based on fear: the public, egged on by the media, fears criminals, politicians fear the public reaction to policies regarded as insufficiently “tough”, and collude in maintaining the level of fear as a means of retaining power. The shrewder among them execute the balancing act by combining tough rhetoric with enlightened actions, but the overall effect in the last 15 years has been to drive up the level of imprisonment and to distort public understanding of community sentences.
23. Another danger of current policy, given the culture of aversion to risk, is over-confidence in “offender management”. The Government’s current strategy to reduce re-offending sometimes conveys the impression that given appropriate organisation and sufficient resources (both unsafe assumptions!) the behaviour of offenders can be changed and controlled in a predictable manner. This overestimates both our knowledge of human behaviour and the available techniques of risk assessment and management. Research and experience indicate that certain strategies are more likely than others to succeed in preventing re-offending, but offender management is not an exact science, and to over-sell its prospects to a sceptical public runs the risk of discrediting constructive work with offenders.
24. Despite these pressures, it is welcome that the strategy to reduce re-offending aims to address not only crime but the causes of crime. An important report from the Social Exclusion Unit, Reducing re-offending by ex-prisoners (2002) showed how offending is made more likely by negative life experiences and personal problems which have a social basis. Without denying the importance of individual attitudes and behaviour, the Government has officially recognised the contribution of social exclusion of various kinds to the commission of crime, and the need to deal with those factors in helping offenders to make a new life. We are nearer than ever before to “joined-up thinking” about reducing offending – though there is still a long way to go.
25. Another novel feature of the current scene is the prominence now given to victims’ needs and rights – though often more in precept than practice. This reflects a reaction against the tendency of an adversarial system of justice to sideline victims of crime, but it also reflects broader cultural trends as result of which voices previously ignored or suppressed are being heard. This brings salutary challenges both to the criminal justice system and to Christian faith. However, a careful response is called for, because the appeal to the interests of victims is sometimes used to legitimate unjust or inhumane action against offenders.
26. Finally, the “law and order” agenda has been marked in the last ten years by a concentrated drive against anti-social behaviour. This has arisen from concern about the disruptive effects on communities of acts of vandalism, nuisance and minor disorder, the inability of court procedures to deal with these speedily and effectively, and the danger of unchallenged anti-social behaviour leading to criminal activity. A succession of Acts and strategies between 1998 and the present have instituted a range of sanctions and interventions – ASBOs being the best known and most controversial – designed to combine challenge and support for those engaging in such behaviour. Although ASBOs were not originally designed for young people, much of the focus for these measures has shifted to young people, partly because the youth justice system gives space for experiment and inter-agency co-operation but also because of public anxiety about the behaviour of young people which is not always well-grounded.