Rethinking Punishment: Scotland’s Future and the Future of Justice
(This article was written in February 2015. Note my pre-Brexit, pre-General Election 2015 naivety in places…)
“Imagine you’ve been burgled,” the professor suggests to a room full of sociology students. “He’s taken all your favourite possessions. How many of you would, if you could, have him locked up in five minutes?” Almost all of the students raise their hands without second thought.
“OK, so what about if you knew this man was a relapsed drug addict? What if his family were deep in debt and he hadn’t eaten for three days? Couldn’t get a job? What if he’d been churned in and out of the justice system without decent legal aid more times than he’d had hot dinners? Is prison still the best place for him now?” The lecturer does not deliver these possibilities with the air of derisive triumph, but rather calmly lays them down for all to consider. Everyone in the room looks at each other sheepishly, as if they have missed a punch-line. The joke is that even sociology students (perhaps the most stereotypically liberal sector of society) fall for the seductive narrative of simple, instant punishment.
Criminologists have a phrase for this: populist punitiveness, or penal populism. It’s the idea that criminal justice becomes less of a moral or practical issue and more a party political one; that parties can tap into a general fear of crime or disenchantment felt amongst victims, in order to garner votes. Being seen to be ‘tough on crime’ raises the political climate to the level of populist, Daily Mail hysteria we witness today in relation to the likes of immigration. With penal populism, we have the tabloid recycling of stock, ‘blue-collar’ criminals, but rarely do we have the contextual story necessary to fully flesh out the nature of the crimes we read about.
The problem with this of course is that it leads to extreme, right-wing approaches to criminal justice, seen perhaps most dramatically in the ‘bang-em-up’ North American model of tough sentencing, chain-gangs and super-prisons. This sits uneasily alongside the progressive liberalism, soft conservatism or centre politics that most major parties wield as their ideological banners in the UK. Yet as Jonathan Simon suggests in Governing through Crime (2007), this increasingly punitive approach to justice found in the US but also (albeit to a lesser extent) in the UK, is not just a pragmatic response to problems with crime, but rather a more comprehensive tool of social governance. The United States has quadrupled its prison population in the past three decades, while the UK’s prison population has doubled since 1993. Accompanied by statistics which show a recent broader decline in the rates of violent crime, these figures might seem perplexing or counterintuitive. Why are we locking up more people when less violent crimes are being committed? The fact is that the prison system is becoming less about justice and protecting society, and more about asserting the long arm of the state in a society where its ‘soft’ role of welfarism is slowly crumbling.
And yet this is not just a process that can be attributed to the state; it is also one accelerated through the punitive appetites of the media. In the past few decades, crime has increasingly occupied a prominent pedestal in media reporting. Part of this problem is the sensationalist and individualistic style of reporting, as well as its predominant focus on so-called ‘blue-collar’ crime committed by those who occupy a lower rung on Britain’s persistently rigid social stratum. In fact, if you absorbed everything the mainstream media told you, you’d be forgiven for thinking that crime was something that only happened in urban areas by working-class youths, or else by the odd drug-hazed celebrity entering a spiral of personal decline. Although this outlook on criminality has been changing in recent years – with revelations of MPs’ expenses, phone hacking, police cover-ups in relation to Hillsborough and child sex scandals, as well as the corruptions of bankers – such interest in more corporate or ‘white-collar’ crime continues to generally focus on the ‘bad apple’ individual over the systemic problems which necessarily contextualise the offence in question. The kind of systemic problems that led to the banking crisis and the institutional racism unveiled by the Stephen Lawrence case.
Media reporting of crime often uncritically accepts the view of criminal justice officials as its source, and while criticism of police failures is sharpening in the UK, reporting of individual crimes still relies often on hysteric headlines and moralising quotations. A quick glance at the ‘Crime’ page of The Telegraph’s website reflects this emphasis on violent crime and celebrity offending over more analytical crime reporting. The media’s power to shape the population’s perception of crime was famously demonstrated in Policing the Crisis, a 1978 study by Stuart Hall and his colleagues which showed how the press effectively invented the term ‘mugging’. By saturating the public with extreme reports of its occurrence, Britain’s media whipped up a ‘moral panic’, so that reporting of violent robberies increased, and as ‘mugging’ was absorbed into official crime statistics, it was the media’s scapegoating of black working-class youths that became synonymous with this apparently ‘new’ crime itself. We have seen this more recently with the politicisation of youth crime and moral panics about ‘hoodies’, ‘Neds’ and ‘Chavs’ – the demonisation of the working-class, as Owen Jones puts it – following Thatcherite attitudes to the ‘feckless’ poor and New Labour’s ASBO legislation and tougher ‘welfare-to-work’ approach to welfare.
What seems to emerge from this interplay between social policy, crime statistics and media reportage is that mainstream media often frame the overall picture of crime through a neoliberal ideology of individual responsibility. While this might help foster the confidence of victims to come forward – for example in cases of rape – it also means that whole sectors of society become demonised as ‘risk’ populations, and with the media’s uncritical reliance on official crime statistics, we often get a distorted picture of the extent of crimes whose definition may have changed along with shifts in sentencing policy. The demand for moralising, punitive justice stirred up by the media is one factor among many that might explain our rising prison population.
When the media does report broader trends in crime, the problem is that even with articles from ‘respectable’ sources like The Guardian, these trends often remain distorted as a picture of UK crime as a whole. This is because such articles frequently rely on the Home Office’s statistics and the British Crime Survey, which focus only on England and Wales, thus giving a potentially misleading impression about crime and sentencing in Scotland and Northern Ireland. Scotland has had its own criminal justice system going back to the 1707 Act of Union. Traditionally, this system has been seen as more socially democratic, reflecting the endurance of more left-wing ‘Scottish values’ against the encroachment of neoliberal punitiveness. The Scottish approach, then, has conventionally been seen as ‘softer’, offering a more holistic method of dealing with low-level offenders in particular. The Children’s Hearing system is exemplary of this, whereby offenders below the age of 18 are referred to a Children’s Panel which considers both young offenders and victims within a welfare context, paying attention to a child’s needs and how this plays out in the local community. Within the court system itself, sentencing is more flexible and is judged on a case-by-case basis; with the exception of murder, judges are not forced to impose any mandatory sentences.
However, somewhat paradoxically, following devolution in 1999 Scotland’s unique approach to justice has apparently become diluted. The Scottish Government, especially in the early days of the Labour-Lib Dem coalition, increasingly absorbed more Anglo-American ‘risk-based’, populist and punitive trends. This so-called ‘detartanisation’ of Scottish criminal justice is seen in the hardening of a two-tier approach to justice, related to changes to legal aid and to the plea-bargaining system that reflect a move towards efficiency-based procedure. For example, there is a shift into an implicit approach of ‘sentence discounting’. This encourages early guilty pleas in exchange for more lenient sentences; but while it might cut the court’s legal fees, it is obviously profoundly unjust to foster a system where the accused are quickly churned through the system to drive efficiency. It risks threatening human rights if innocent people are being encouraged to plead guilty – even if it is to be ‘let off’ quicker. Moreover, it creates, as Dorren McBarnet puts it, a two-tier justice whereby some have access to a jury trial while the justice of everyday court procedure is diluted by this trend towards relinquishing the right to trial. There is a class issue here too, as more affluent defendants can afford the advantage of personal legal aid. If the quality of legal aid available to all is weakening, then so is social democracy.
Scotland’s somewhat disturbing move towards more efficiency, risk-based and the ‘punitive turn’ of Anglo-American justice is also evident in policy changes within the justice system. There are tougher approaches to community sentencing, which include increasingly invasive methods of surveillance, a re-emphasis on punitive elements and a strict adherence to ‘risk assessment’. In recent years Scotland has also seen the reintroduction of ‘Youth Courts’ for 16-17 year olds, representing a turn away from the ‘child-centred’ welfarism of Children’s Panels and resulting in what has been called a ‘Burberry court’ – named after its predominant association with prosecuting working-class offenders. With measures such as these, Scotland risks joining the trend towards a ‘decivilising process’, whereby public discourse on the working-class echoes the Victorian rhetoric of the ‘undeserving’ urban poor. Our newspapers are unfortunately awash with moralistic, personal attacks on benefit claimants, ‘junkies’ and ‘Neds’, and this filters down into the increasing alienation and demonising of whole communities that already face multiple forms of social exclusion and economic deprivation. A New York-style ‘zero tolerance’ clamp down on ‘antisocial’ conduct is born out of the desire to show a ‘clean’ image of Scotland. We should also acknowledge the impact of (and not just upon) business, as space itself becomes increasingly privatised and issues of beggars, public drinking and young people ‘hanging around’ become criminalised in an effort to preserve the ‘modern’ image of an increasingly service-based, leisure and consumer-driven economy like Glasgow’s. There is a whole other issue here about the ethics and targeting practice of private security firms (used, for example, in nightclubs and shopping centres), but that’s a story for another occasion.
With this problem of criminalising the poor, we turn to the matter of prison itself. The thirst for punitiveness which seeps through the layers of British society has of course contributed to a steadily rising prison population not just in England and Wales, but also Scotland. Yet the ‘prison works’ ideology famously championed by Michael Howard in the 1990s clearly oversimplifies things. While prison has a place for violent offenders who pose a danger to the public, in its current state – especially with all-round cuts – it isn’t working as it should, as figures from the Prison Reform Trust prove. Nearly 50% of adult prisoners reoffend within one year of release. This failure to encourage desistance from crime is not just a waste of taxpayers’ money and a risk to the public but also reflects upon the need for a greater emphasis on rehabilitation in prisons. There is a whole concatenation of needs associated with vulnerable inmates. The decaying walls of old Victorian jails tend not to be equipped for elderly or disabled prisoners. Young people have an array of social, educational and psychological requirements which are not always met in prison. Prisoners who require psychological rehabilitation, the likes of violent or sex offenders, would do well not just to be cordoned off altogether but to be integrated with normal behaviour via appropriate treatment programmes. For female prisoners, there may be separation from children or family: since there are fewer women’s prisons, female offenders find themselves disproportionately further from their homes. In England and Wales, nearly 50% of female prisoners are reported as having a history of domestic abuse. In Scotland’s only women’s prison, Cornton Vale, two thirds of its inmates were on suicide watch in 2013.
Related to these mental health issues is one persistent problem that I would like to linger on: the issue of alcohol and drugs within Scottish criminal justice. It is difficult to look at many crimes without recognising the role that legal and illegal substances play. Indeed, a recent study conducted by the Howard League Scotland showed that two-thirds of young offenders reported being drunk and 39% on drugs at the time of their offence. Alcoholism and drug addiction seem to pervade prison statistics at all levels, and these problems, stemming from a complex array of social issues, must be treated properly if we are to readdress our approach to criminal justice in Scotland. As it stands, drug users are sucked into the broader decivilising process whereby working-class individuals are excluded from mainstream society, often via criminalisation. People do not take drugs in a vacuum. For example, the association between heroin addiction and poor housing estates is not because of some moral failure but stems from issues of related social deprivation such as unemployment, poverty and localised problems with crime. Areas of deprivation are also more likely to be policed, which means it is possible that working-class users are often targeted by the justice system more than their comparatively affluent counterparts.
Drug charities and various studies have persistently reiterated the links between ‘problematic’ hard drug use and deprivation. One key issue here is that drug users are often ‘recycled’ through the justice system without receiving adequate treatment, and thus fall back into committing drug-related offences upon release. Perhaps, as the Scottish Centre for Criminal Justice Research has argued, we need to acknowledge that ‘reoffending’ itself is a flawed concept which focuses only on legal rather than behavioural criminality, and unlike the notion of ‘reintegration’, cannot do much good for recognising indicators of successful desistance from crime.
Some steps are already in place to tackle this issue by directing offenders towards the correct treatment. The 1998 Crime and Disorder Act saw the introduction of ‘Drug Treatment and Testing Orders’ (DTTOs) in Scotland, which demonstrate a specific aim to, as the Scottish Government website puts it, ‘reduce or eliminate an offender’s dependency or propensity to misuse drugs’, and to more broadly address the scale of drug-related offences in Scotland. There has also been the introduction of special ‘Drug Courts’ which tailor sentences to assist with the work of DTTOs and break habitual cycles of reoffending linked to drug dependency. Findings have suggested that these measures are proving somewhat successful, by improving the offender’s accountability and making drug testing and treatment mandatory, as well as helping to avoid a custodial sentence which might merely intensify the problem.
We shouldn’t, however, overestimate the achievements made possible by these measures. Although the Global Commission on Drug Policy has argued for a ‘public health’ approach to drug crime – the kind being adopted by the likes of DTTOs – these should be situated in conjunction with a holistic and therapeutic approach that looks at the opportunities possible for the individual out-with the cycle of drugs and offending. To call someone a ‘junkie’ is to other them; to recognise their illness but also to categorically distinguish them as different from oneself, as morally inferior. While the issue of decriminalisation is beyond the scope of this essay, the question of how we represent offenders and drug-dependency is certainly relevant to a broader imperative to rethink crime and justice outside of the punitive narratives supplied for us by political and mainstream media discourse. A socially just future Scotland would be reflexively critical and aware of the structural conditions that lead to concentrated drug crime (including de-industrialisation and housing) and would take steps to recognise them in its treatment of offenders.
Such a socially just future is not completely beyond the current horizon. We can start sowing the seeds of optimism in relation to the issue of women and imprisonment, with the Scottish Government’s recent decision to cancel plans to build a 500-capacity women’s prison at Inverclyde. Following talks and activist pressure from a number of sources including Woman for Independence, the Howard League for Prison Reform and a campaign by the Scottish Labour leader Jim Murphy, the decision reflects the potential for a more reflexive, discursive and collaborative politics which Scotland can offer towards its justice system. Too many women are held on remand in prison, far away from their families, which raises an unnecessary risk of psychological and social harm. Rather than throwing short-term, low-risk women offenders into a new ‘super-prison’, the government can proceed with plans to divert them from incarceration altogether into alternative sentencing, or into more appropriate community-based units. Ideally, we can build on this small success and move towards an approach which does not make justice a party political issue but one based on a pragmatic appraisal of what works, as well as a foundational interest in social justice, extending not only to the individual offender and victim but also the societal conditions that cannot be detached from the crime itself.
Could this, then, be evidence of ‘re-tartanisation’ following the SNP’s occupation of government? Certainly, since 2007 we have seen various measures taken to reduce the rate of short-term sentences in favour of more constructive community sentencing. There have also been serious initiatives rolled out to tackle organised crime and efforts made towards corporate and cybercrime, which suggests an increasing recognition of the fact that organisations and companies cause far more societal damage (whether economic, environmental, social, political or personal) than the average ‘street’ crime.
Moreover, accompanying these policy shifts has been the more general impact of the Internet on mainstream media narratives. Indeed, the ease of access to a plethora of publications from non-profit organisations gives us the power to be critical and reflexive about the stories told to us by television and print media. It is easier to hold governments, journalists and the justice system to account when we have instant access to the latest statistics, and the possibility of corroborating and comparing these statistics with those gleaned by different studies, or with different nations. To some extent, it is up to us, as readers and consumers of media, to rethink our attitudes towards justice – and what that means exactly. Rather than passively absorbing, we should be actively critiquing.
Where can Scotland go from here then? It seems the biggest challenges are to resist the continual Anglo-American ‘punitive turn’, whilst remaining ultimately part of the UK; to reconcile local, national and international demands in an increasingly globalised world where crime crosses borders; to move forward with a pragmatic rather than party-political approach to deciding justice policy. Scotland is often compared with Scandinavian nations such as Norway, and perhaps these models provide what might tenuously be an optimistic blueprint for the future. Treating prisoners like people instead of demonised ‘others’ (consider that under UK law prisoners do not have the right to vote, and the Con-Dem coalition’s recent attempts to ban books from prisoners which were thankfully ruled unlawful by the High Court) is the way forward. In Norway, where prison staff are encouraged to foster positive relationships with inmates, and where the emphasis is on education, training and psychological treatments, the reoffending rate is the lowest in Europe. Your punishment is the loss of liberty; everything else should work towards re-habituating the offender into a fulfilling role in the community. Giving a person a chance to reconcile themselves with opportunities they might not have had before conviction is surely the best way we have (short of whole-scale societal change) to not only reintegrate someone, but to protect the public from future reoffending. The media is a big part of the problem, as I have suggested, but it can also have a positive role in making us rethink justice. We need to stop looking at examples such as Norway’s as ‘luxurious’ and a ‘waste of taxpayers’ money’ and think practically about how we can learn from them, and in the process not only save our own government a lot of the money lost through crime and reoffending, but also work towards a more just society.
Things to check out:
The ‘Discovering Desistance’ blog http://blogs.iriss.org.uk/discoveringdesistance/ – explores why people desist from offending. There’s lots of interesting research on there and a documentary, ‘The Road from Crime’, in which an ex-offender turned probation office looks at what we can discover from those who have ‘desisted’ from criminal behaviour.
Lesley McAra’s important 2008 article in the European Journal of Criminology, ‘Crime, criminology and criminal justice in Scotland’ in which she puts forward the concept of ‘detartanisation’ to explore how devolution has paradoxically resulted in a ‘less Scottish’ model of justice. To what extent, we might ask, is this still happening, or has there been a turnaround since the SNP’s occupation of government?
Factsheet from the Prison Reform Trust with statistics detailing who makes up the current UK prison populations and the problems many of them face. Useful for grasping the extent to which those from more working-class or deprived backgrounds are imprisoned, but also issues of gender, age, race and ethnicity in prison: http://www.prisonreformtrust.org.uk/Portals/0/Documents/Prisonthefacts.pdf
Really useful publication from the London School of Economics analysing the global ‘war on drugs’ and the problems of mass incarceration related to this approach. Considers how different policy approaches to drugs might work as well as detailing the failures of current systems. Situates the problem of drug related crime and social harm by placing the local and national problem of drugs and their policing in a global/transnational context. http://www.lse.ac.uk/IDEAS/publications/reports/pdf/LSE-IDEAS-DRUGS-REPORT-FINAL-WEB.pdf