This week we left the realms of theory and started looking at the actual criminal justice system (CJS for short), beginning with the police.
A point I've stressed on this unit is that the CJS isn't a perfect, coherent, logically designed system: it consists of a lot of separate agencies, each of which has grown and changed over time. This week's seminar exercise focuses on the broad range of goals the police are charged with achieving and the very different approaches they need to adopt in order to do so. The focus in the lecture was on how the police - and the police's relationship with government and society - has changed over time.
The key issues in the history of the police are power and accountability. Police forces, and chief constables in particular, have always wanted the power to do the job as they see fit, without being made accountable either to local authorities or to central government. Neither local authorities nor the Home Office have ever been keen on this idea; as a result, between the 1960s and the 1990s a three-way power struggle developed over who should be in charge of the police. The tug-of-war was resolved in 1994: it was established that chief constables would have free rein over operational matters, and that local authorities would not have any effective oversight; the police were to be governed through targets, guidelines and contracts, defined by the Home Office and implemented locally. This basic structure remained unchanged under both John Major and New Labour. Local democratic control was more or less non-existent; the police were pressured to do something about low-level disorder and anti-social behaviour, on the grounds that this was what "the people" wanted, but the pressure came from above, not from below.
The Coalition aims to change all of this: out goes the bureaucratic apparatus through which all those contracts and targets have been administered; out goes constabulary independence in favour of Home Office oversight over chief constables: and in come locally-elected Police and Crime Commissioners, with democratically-validated authority over the local chief constable. How this will work out we can't yet say, although it seems highly likely that penal populism will figure heavily in the platforms of the first wave of Police and Crime Commissioners, and that chief constables will push back against anyone trying to tell them what to do.
Tuesday, 22 November 2011
Wednesday, 16 November 2011
Week 8
This week's lecture looked at sentencing, or at least scratched the surface of this huge topic.
There are three very different ways of looking at sentencing policy; in fact, you can't really make sense of sentencing unless you look at all three of them, which is why I tried to get them all into the lecture. Philosophically, you can ask what sentencing is for: what are the courts trying to achieve by passing a particular sentence, and what should they be trying to achieve? How you answer this question depends on what kind of purpose you think sentencing should serve: is the main point of the sentence the punitive effect it has on the offender, or the beneficial effect it has on society? Retributive theories of sentencing argue that sentencing is all about punishment, but that the punishment should be scaled precisely to the offence; in practice, retributivists tend to be in favour of making sentences less harsh. Utilitarian theories argue that sentencing is carried out for the good of society, which may involve locking up some offenders for life or imposing excessively harsh punishments so as to deter potential offenders. Utilitarian theories are invoked to justify everything from restorative justice to indefinite prison sentences.
Practically, you can ask what sentences work. Utilitarian theorists, in particular, justify particular types of sentence on the grounds that they will cut crime. Research can be and has been carried out into whether this approach to sentencing actually works, and the results are very inconclusive.
Politically, finally, you can analyse sentencing policy in terms of how it has changed over time - and why. The history of sentencing over the last two decades is a rather sad story of penal populism from government and pressure for "judicial independence" from below; retributivist sentencing has fallen out of fashion, but the research which could validate a utilitarian approach to sentencing has largely been ignored. Instead of sentencing being guided by a consistent theory and underpinned by research, in practice it is largely guided by political pressures and underpinned by gut feeling. Some interesting developments have taken place in areas such as restorative justice, and it remains to be seen how the Coalition's criminal justice policy will evolve in this area: which will be most powerful, the punitive voices on the Tory benches, the liberal inclinations of the current Minister of Justice or the ever-shrinking budget?
There are three very different ways of looking at sentencing policy; in fact, you can't really make sense of sentencing unless you look at all three of them, which is why I tried to get them all into the lecture. Philosophically, you can ask what sentencing is for: what are the courts trying to achieve by passing a particular sentence, and what should they be trying to achieve? How you answer this question depends on what kind of purpose you think sentencing should serve: is the main point of the sentence the punitive effect it has on the offender, or the beneficial effect it has on society? Retributive theories of sentencing argue that sentencing is all about punishment, but that the punishment should be scaled precisely to the offence; in practice, retributivists tend to be in favour of making sentences less harsh. Utilitarian theories argue that sentencing is carried out for the good of society, which may involve locking up some offenders for life or imposing excessively harsh punishments so as to deter potential offenders. Utilitarian theories are invoked to justify everything from restorative justice to indefinite prison sentences.
Practically, you can ask what sentences work. Utilitarian theorists, in particular, justify particular types of sentence on the grounds that they will cut crime. Research can be and has been carried out into whether this approach to sentencing actually works, and the results are very inconclusive.
Politically, finally, you can analyse sentencing policy in terms of how it has changed over time - and why. The history of sentencing over the last two decades is a rather sad story of penal populism from government and pressure for "judicial independence" from below; retributivist sentencing has fallen out of fashion, but the research which could validate a utilitarian approach to sentencing has largely been ignored. Instead of sentencing being guided by a consistent theory and underpinned by research, in practice it is largely guided by political pressures and underpinned by gut feeling. Some interesting developments have taken place in areas such as restorative justice, and it remains to be seen how the Coalition's criminal justice policy will evolve in this area: which will be most powerful, the punitive voices on the Tory benches, the liberal inclinations of the current Minister of Justice or the ever-shrinking budget?
Thursday, 10 November 2011
Week 7
This week we've been looking at the way that politics affects the criminal law.
Earlier in the unit we've talked about how and why particular actions get defined as 'crimes'. It has to do with harm and repugnance: if an action is seen as particularly harmful, or a harmless action is seen to be particularly revolting, it's likely to be criminalised.
The trouble is, this creates the possibility that actions - and people - will be criminalised purely because they happen to be unpopular. The law is supposed to stand in the way of this happening. The law is supposed to provide a coherent, comprehensive and rational set of rules governing everything that happens in society. Because the law is supposed to be coherent, new laws can't be added on arbitrarily; because the law is supposed to be rational, new laws have got to make sense.
At least, that's the theory. In practice, laws are made by politicians, which means that the law is vulnerable to political pressure. The main pressure on the law over the last couple of decades has come from an approach to the law called penal populism. Populism consists essentially of politicians telling people that their common-sense view of the world is right, and politicians are lying to them (at least, all the other politicians are). Penal populism consists of telling people that they're right to be worried about crime, they're right to think that the criminal justice system is in difficulty, and that the government is now going to listen to them and do something about it.
From Michael Howard in the mid-90s to Louise Casey in the late 00s, politicians of different parties have played the 'penal populist' card over and over again - hence Ian Loader's comment about taking "another ride on the law-and-order merry-go-round". This clearly suggests that there's a problem with penal populism - if it was ever going to work, it should have worked by now! The danger is that penal populism may encourage the anger and anxiety about crime which it claims to address - the more politicians announce that crime is a huge problem that other politicians have failed to deal with, the more people believe that crime is a huge problem that all politicians are failing to deal with.
Earlier in the unit we've talked about how and why particular actions get defined as 'crimes'. It has to do with harm and repugnance: if an action is seen as particularly harmful, or a harmless action is seen to be particularly revolting, it's likely to be criminalised.
The trouble is, this creates the possibility that actions - and people - will be criminalised purely because they happen to be unpopular. The law is supposed to stand in the way of this happening. The law is supposed to provide a coherent, comprehensive and rational set of rules governing everything that happens in society. Because the law is supposed to be coherent, new laws can't be added on arbitrarily; because the law is supposed to be rational, new laws have got to make sense.
At least, that's the theory. In practice, laws are made by politicians, which means that the law is vulnerable to political pressure. The main pressure on the law over the last couple of decades has come from an approach to the law called penal populism. Populism consists essentially of politicians telling people that their common-sense view of the world is right, and politicians are lying to them (at least, all the other politicians are). Penal populism consists of telling people that they're right to be worried about crime, they're right to think that the criminal justice system is in difficulty, and that the government is now going to listen to them and do something about it.
From Michael Howard in the mid-90s to Louise Casey in the late 00s, politicians of different parties have played the 'penal populist' card over and over again - hence Ian Loader's comment about taking "another ride on the law-and-order merry-go-round". This clearly suggests that there's a problem with penal populism - if it was ever going to work, it should have worked by now! The danger is that penal populism may encourage the anger and anxiety about crime which it claims to address - the more politicians announce that crime is a huge problem that other politicians have failed to deal with, the more people believe that crime is a huge problem that all politicians are failing to deal with.
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