Example of a mix of welfarism and managerialism and potential for inequality and discrimination:
Proposed policy on mental disorder from the 2000 white paper, relates to defining risk and predicting danger:
- Compulsory procedures to ensure that certain patients living in the community take their medication. (cure by force!)
- Indefinite detention for people deemed dangerous, with untreatable personality disorders, even if they had never committed a crime. (assumes that they have symptoms that we can universally recognise.)
(Carvel 21/12/2000 in the Guardian)
Problems about predicting potential criminality is that there is no accurate way of doing this, psychiatrists cannot decide on a definition of ‘dangerousness’ (Nash 1999). There are moral, cultural and political judgements used as a basis of risk assessment. Problematic in as much as fundamental decisions may be made that may affect an individual.
Morality, culture and politics… About dangerous:
Nash (1999 p20) argues that it is often difficult to explain and understand behaviour which is seen as dangerous; therefore it can be seen that the person who kills his spouse in a fit of jealousy is rarely assessed by criminal justice personnel as being as dangerous as the man who abducts and kills a child.
This is reflected in sentencing and release decisions eg: the imposition of a 200 hour community service order on a man in Scotland convicted of killing his wife with 11 stab wounds (Guardian 9/7/1997). Yet as Scott (1977) argues pathological jealousy is a notoriously dangerous passion, and in the right circumstances, there is considerable risk of a second murder taking place. (in Nash 1999)
Depending on which perspective you favour, will affect your beliefs and understanding of what constitutes JUSTICE.
JUSTICE is therefore a subjective notion, and is subject to inequality.
Current CJ policy represents an uneasy compromise/contradiction between models. There is a constant theme around the possibility of imposing a system of formal justice (assumption of equality before the law) on a system of substantive inequality, where people are simply not living on an equal footing to each other.
For instance to create equality in terms of sentencing is inherently problematic given that certain punishments are dependent upon the availability of personal resources, thus external inequality impinges on internal criminal justice decisions.
Eg Fines…income will affect how much of a punishment this is…
Tagging…Need a stable place to live and a phone.
External inequality impinges on internal CJ decisions.
Looking at the CJS and ‘the crime problem’.
‘Whatever else prisons may be for, they have always housed large numbers of the poor, the unemployed, the unemployable, the homeless, the physically ill and the mentally disturbed.’ (Carlen 1994 p309).
‘The usual suspects’ (Young, male, disproportionately black, lower social class: Coleman and Moynihan 1996 p91)
Two main issues contribute to inequality:
- Our dominant definition of ‘the crime problem’, and the knock on effect to what sort of people cause it.
- The presence of discretion in the CJS.
‘The crime problem’.
Box (1983 p17) argues that:
‘The majority of people are continually exposed to a portrait of crime in which the background consists of murder, rape, robbery and theft, and the foreground is full of characters mainly drawn from the poor, disorganised, lower class neighbourhoods. No wonder that corporate crime is not viewed by many people, including most criminologists(!), as a pressing serious social problem.’
The usual suspects…Inequality is compounded by the way we define crime and consequently how certain types of perpetrator end up in the CJS.
See TV fiction, factual programmes and newspaper reports, for illustrations of the ‘real problem’ because corporate offenders are not seen as the ‘real problem’.
Probs: Those suffering from corporate crime may not even know they are being victimised, and many corporate crimes are defined as misfortunes or accidents!
BUT,
‘If a …… crime clock for industrial deaths were constructed…and recalling that this clock ticks for that half of the population that is in the labour force – this clock would show an industrial death about every four and a half minutes! In other words, in the time it takes for one murder on the crime clock, six workers have died “just trying to make a living”!’ (Reiman 1979 in Box 1983 p26)
Whilst Reiman is referring to USA, Box argues that the picture is very similar in Britain. (ibid).
Look at Risks:
UK Annual Road Deaths 3.423
Deaths at work 1999/2000 295
Non fatal serious injuries at work 21,935
Estimate of the elderly killed by cold per year 50,000
Serious DIY accidents 1997 85,000
Homicides per year by people with mental health prob 40
Suicides per year by people with mental health prob 1000
Children murdered per year 45
Children murdered per year outside family 4
Deaths due to prescription drugs 2000 1,200
Deaths mentioning Heroin on death certificate 754
(various articles on BBC News site)
Not going to go into complexities of why this is the situation, in this lecture, however the important issue here is that despite risks from elsewhere, the CJS is mainly concerned with what we see as ‘the usual suspects’.
When it comes to identifying ‘the usual suspects’ … ‘the poor, the unemployed, the unemployable, the homeless, the physically ill and the mentally disturbed,’ there are opportunities to exercise discretion at every stage of the CJ process and this may be affected by the ‘type’ of person, the criminal justice practitioner thinks you are, could be related not only to issues such as race, class and gender, but also things like demeanour:
Descretion occurs when decisions are made:
Whether to stop and search.
Whether to caution/charge.
Whether to remand in custody or bail
What type of penalty to administer.
How long that custody should be.
What happens in custody.
Wilson and Ashton (1998 p83) argue that discretion provides opportunities for discrimination.
Important because this is when ‘subjective decisions’ are made on an individuals ‘criminal tendencies’.
This is where the CJS is underpinned by the crime control model rather than the due process model. It also can potentially bring in an assessment of risk from managerialism, or the possibility of individual treatment in terms of a welfare approach.
Look at race as an example:
Political comment is important as it may affect public perceptions of a particular issue:
July 95 Paul Condon, the then Metropolitan Police Commissioner urged ethnic community leaders to recognise that:
‘it is a fact that many of the perpetrators of muggings are very young black people’ (cited in Wilson and Ashton 1998 p81).
Whilst his comments were not reported in full as the full sentence included ‘…who have been excluded from school and/or are unemployed’, they non the less confirmed the widespread distrust between various black communities and the CJS.
Not only this but such comments also serve to potentially legitimise discriminatory practices within the CJS against black groups, who are then seen to deserve the greater surveillance they undoubtedly suffer.
Again: recent comments BBC News March 2002
Commenting on the ‘dramatic drop’ in the number of stop and searches over the past 2 years (thought to be due to the comments made about police racism in the Met from the MacPherson enquiry on the murder of Stephen Lawrence), Home Sec David Blunkett was reported to have said:
‘The “vast majority” of violent crime was black on black. “We need to be honest about it and we need to do something about it” he said’.
This might be inaccurate, or out of context, but non the less it legitimates discrimination.
Research shows that at every stage of the CJ process, discrimination takes place:
This is despite the fact that evidence shows that black people are more likely to be victims rather than perpetrators of crime.
Eg Home Office research doing a self report study on a large sample of 14-25 year olds (who are the group most likely to commit crime), showed that whilst a higher proportion of black people are in this group, that both Afro-Caribbean’s and whites have a similar rate of offending, and Asians were actually less likely to commit offences.
Contrary to stereotypes, whites were the most likely to use illegal drugs. (The most common reason given for Black and Asian people to be stopped and searched by the police was for drugs, in comparison to whites, which was to search for stolen property (1998/9 HO figures in Guardian Dec 2000).
Figures from Wilson and Ashton (1998 p84-85)
5.5% of the general population are of ethnic origin:
Stop and search:
1994/5 in England and Wales a total of 590,918 people were stopped and searched, 22% were from ethnic minorities.
In Metropolitan police area, 37% of those stopped and searched were from ethnic minority groups. This is an improvement however as…
Research from the mid 80’s by Policy Studies Institute showed that in the Metropolitan police area 63% were Afro-Caribbean, 44% were white and 18% were Asian.
Its getting better:
1998/9 Home office crime figures (Guardian Dec 2000):
1mil Stop and searches recorded 9% Black, 5% Asian, 1% non white. (15% in all from ethnic minorities but this still means that black people are six times more likely to be stopped than whites).
(The following is taken from Ashton and Wilson 1998 p87-8).
We must remember that only a small proportion (12% 1998/9) of those stopped and searched are ever arrested, however, according to the Commission for Racial Equality (1992) out of those arrested, ethnic minorities were more likely to have their cases referred to prosecution.
Decision to charge:
Those of ethnic origin, when charged are more likely to be charged for indictable offences (resulting in a Crown Court appearance and the possibility of a longer sentence), and more likely to be remanded in custody rather than given bail. (HMSO 1992)
Outcome:
In Hood’s 1989 research, even taking into account the seriousness of the offence, young black males were 17% more likely to receive a custodial sentence than whites. But in specific areas eg Dudley, they had a 23% chance of receiving a custodial sentence.
Higher proportions of Black (42%) and Asian (43%) offenders were sentenced without a social inquiry report being available (a way to mitigate on behalf of the offender), compared to whites (28%).
(from Ashton and Wilson 1998 p87-8).
Imprisonment:
5.5% of population are of ethnic origin:
17% of Males and 24% of female prisoners are black.
Afro-Caribbeans are 1.5% of the general population but make up 11% of the male and 20% of the female prison population.
Black people in Prison tend to be treated more harshly
Death of Alton Manning, a black prisoner on remand from positional asphyxia. The inquest decided he had been unlawfully killed by the 8 prison officers who had restrained him.
Director General of Prison service Richard Tilt caused further controversy when being interviewed on Newsnight when he suggested the reason why 6 out of 7 prisoners who had died in this way had been black was the result of Afro-Caribbean people being more likely to suffer from positional asphyxia than whites, an assertion not based on fact, and for which he subsequently had to apologise for.
Afro-Caribbeans are often discriminated against in work allocation, access to education and are disproportionately placed on charges for offences against prison discipline.
In research by Alfred (1992) he describes one black prison officer describing white staff ‘calling inmates “niggers”, “coon”…you think that’s gone out of the window? Well it hasn’t’.
One civilian instructor who would not have black prisoners employed in this workshop was said to have stated: ‘you just can’t have them doing this job. It would be different, wouldn’t it if it was a banana factory I was running here – then it would be right up their street’. (Alfred 1992)
(from Ashton and Wilson 1998 p87-8).
Race is not the only issue here however:
‘Unemployment status influences police decisions to apprehend, arrest and prosecute, it shapes probation officers sentence recommendations and has a detrimental effect on the type and severity of court sentence.’
(Box 1987 p190)
Looking at research, Box (1987 p168) argues that the police are likely to arrest proportionally more young males in areas of high unemployment and ethnic minorities are over-represented amongst the young and unemployed.
Middle class juvenile offenders are more likely to be cautioned than prosecuted for the same type of offence than working class offenders (Bennett cited in Coleman and Moynihan 1996 p105). This may depend on the area apprehended (Ashworth in ibid).
Policy:
‘Tough on crime, tough on the causes of crime’
Governments crime reduction strategy: (2000)
(See Home Office Web site)
Headings:
Raising Performance
Reducing burglary and property crime
Tackling vehicle crime
Dealing with disorder and anti-social behaviour
Dealing effectively with young offenders
Dealing effectively with adult offenders
Helping victims and witnesses.
All about Street crime not Suite crime…No change there!
A few details about this…
Tough on the causes of crime?
Extending offending behaviour programmes £26m
Improving education and work skills and creating welfare to work
Tackling drug addiction £76m
Sure start projects to work with parents to promote development of pre school children. £540m
Tough on crime?
Wider use of electronic tagging
Extension of mandatory drug testing
Tougher enforcement of community sentences £127m
Three strikes and out for burglars, mandatory three year sentence.
Link payments with community sentences, if don’t comply…no benefits
Truants…Parents must attend court or risk arrest. The courts can impose a fine of £2,500
Management of people with severe personality disorders.
The need to be tough on crime is important….therefore
We see both a punitive and a reform agenda, but Levita (23/3/2001 Guardian) argues that the government is more concerned with ensuring conformity rather than addressing poverty, social exclusion and inequality.
Social exclusion unit about getting people out of poverty by ‘New Deal’ work, but in practice concentrates on undesirables such as Rough sleepers, truants and pregnant teenagers.
Hough (5/6/2001 Guardian) Although there is a reform agenda eg Drug treatment and testing orders (DTTO’s), that the authoritarian approach is also important, with curfew orders, parenting orders, anti-social behaviour orders, and drug testing orders all being pushed.
Also he talked about the government’s ‘custody plus’ plan, where sentencers would be able to ‘pick and mix’ sentences to include custody and community tariffs. Hough however is concerned that sentences might be ratcheted up, so that the offender obtains two forms of punishment instead of one.
Going back to our original study about inequality in respect of race, there is a seven line statement in the crime reduction strategy about combating race hate crimes, and attempting to keep ethnic minority staff in the police.
Sivanandan director of the institute of race relations (21/2/2000 Guardian) notes that nothing has been done to dismantle the policy of stop and search, which is clearly discriminatory to ethnic groups. Also according to Sivanandan, nothing has been done about the accountability of the police in respect of deaths in custody, in fact the situation has got worse in as much as ‘The freedom of information bill’ has exempted the police from having to make full disclosure of their actions in all areas of policing. Also police culture tends to result in officers closing ranks on such issues. (See work by Reiner 2000 on cop culture)
Conclusions:
Inequality exists at many levels within the CJS. Whilst some attempt has been made to address general inequality in labours policies, ideological underpinning of the CJS in terms of ‘crime control’, and concepts within managerialism and welfare such as decisions about individual treatment and an assessment of risk and danger, as well as the unproblematic definition of ‘the crime problem’ may still ensure that inequality in the CJS persists.
Bibliography:
Box, S. (1987) Recession, crime and punishment. London: MacMillan.
Box, S. (1983) Power Crime and Mystification. London: Routledge.
Coleman C. & J. Moynihan (1996) Understanding Crime Data: Haunted by the dark figure. Buckingham: OUP.
Gelsthorpe, L. (2001) ‘Critical Decisions in the Criminal Courts’ in E. McLaughlin and J. Muncie (eds) Controlling Crime. London: Sage.
Garland D. and R.A. Duff (1994) A reader in punishment. Oxford: Oxford Univ Press. (Carlen’s chapter)
Nash M. (1999) Police probation and protecting the public. London: Blackstone Press.
Reiner R. (2000) The politics of the police. Oxford: Oxford university press.
Wilson, D. & J. Ashton (1998) What everyone in Britain should know about Crime and Punishment. London: Blackstone Press.
Derived from Packer 1969 and King 1981.