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CSPS Supervision 1 - Themes, Trends and Challenges Easton and Piper - Developing penal policy
Key issues Our approach
? The policy reasons or penological justifications for state punishment may determine how the offender is treated. P4 What is punishment?
? Punishment rests on moral reasons, the expression of moral condemnation, in response to rule infringements.
? Feinberg refers to censure or condemnation as the defining feature of punishment. o 'Punishment has a symbolic significance largely missing from other kinds of penalties'.
? A key feature of punishment is that it rests on a moral foundation, expressing a moral judgment. P5
? It stems from an authoritative source, usually the state.
? In the UK punishment is increasingly outsourced to agencies independent of the state. Understanding penal policy
? In other contexts, pressures on governments might engender a move away from penal and punitive responses to a welfarist response, seeking to address problems in communities by supporting disadvantaged groups and promoting social inclusion. P6
? There are a number of responses available through penal policy from educational programmes to extreme punishment. Equality, fairness, and justice
? Concern on equality of impact in the late 1980s and 1990s focused on disparities in sentencing, as well as on direct and indirect discrimination.
? Criminal Justice Act 1991 made racial motivation an aggravating factor in assaults.
? Equality Act 2010 imposes on public bodies, including prisons, a duty to eliminate discrimination and to promote equality, and broadens the range of protected characteristics.
? Policies may indirectly discriminate against certain groups such as women with children. P7
? Justice was stressed by the Woolf Report as one of the key principles which should govern the treatment of prisoners.
? Justice embodies notions of fairness to all members of the community, and striking a balance between their competing interests is the cornerstone of current criminal justice policy.
? Retributivism is the approach which links punishment according to the desert or culpability of the individual and matches the severity of the punishment to the seriousness of the crime and the culpability of the offender.
? Utilitarianism is the approach that sees individuals as motivated by the pursuit of pleasure and avoidance of pain and uses this to
devise social and penal policies to promote the greatest happiness of the greatest number.
? Determining what constitutes the justice of a particular punishment requires a decision on the theory of punishment to be deployed. P8 o Just punishment from a retributivist standpoint might seem unjust from a utilitarian perspective. o Utilitarians and desert theorists differ on the role that past convictions should play in determining the punishment for a current offence. Human rights
? Human rights instruments are a key mechanism for achieving just punishment and rights are themselves an important element of many theories of punishment.
? Rights have provided a launch pad to criticise the UK penal system which has been strongly influenced by utilitarianism, an approach which has been criticised for its failure to acknowledge the rights of the offender and for sacrificing the individual's rights for the wider public interest.
? Rights have an important function in protecting prisoners from the excessive zeal of their keepers and, if prisoners retain fundamental rights as human beings while serving their sentences, this will help to ensure that they are treated with dignity.
? A rights standpoint is an important critical tool for assessing systems of punishment, providing a check on powerful regimes and on populist punitiveness, a term coined by Bottoms. P9 o It refers to the increased punitiveness of governments which they believe will appeal to the public and which has been used to justify increases in sentence severity.
? For penal reformers, rights are seen as a way of achieving reform, although not all radical reformers share a commitment to a rights approach. o Some Marx theorists are suspicious of rights because they are essentially individualist rather than collectivist and because they fail to deliver substantive justice.
? Dworkin argues that the right to equal concern and respect is paramount.
? Campbell sees rights as a means of satisfying human needs.
? Rights theorists argue that rights apply to all equally.
? Due process and substantive rights have implications for the treatment of prisoners e.g. prisoners can achieve fairer treatment in the context of disciplinary procedures and decision-making over issues.
? ECHR had a considerable impact in improving prisoners' lives in the UK long before the Human Rights Act 1998 was passed. o While English judges have usually in the past followed the recommendations of the Strasbourg Court, in recent years they have been more willing to challenge the Court's findings and have entered into a dialogue with the Court.
? Jurisprudence of ECtHR has remained an important influence on sentencing and penal policy. P10
Rights have been given effect in a number of areas of prison life and it seems that future litigation on prison life will continue to be framed within the rights discourse of the European Convention. Key influences
? Ideologies are chains of interrelated ideas, the principles underpinning penal policies.
? The role of New Right ideologies was revived by the 2010 coalition government with a strong commitment to involvement of the private sector in the delivery of punishment and rehabilitation, a commitment continued by the Conservative government after the General Election in 2015.
? Welfarist ideologies have declined since the 1980s. Political imperatives
? The political demand for social order has been seen as a key element in increases in incarceration. P11 o Failure to deal with order can have serious consequences e.g. riots in London in 2011.
? Simon argues that in the United States the war on crime has become a key element of governance, facilitated new forms of governance, and generated the growth of legislation to address the problem.
? There is some consensus between the main political parties on law and order policies and it is unlikely that a party would adopt a 'soft' policy on crime because of the perception that public opinion would be hostile. o This is clear in debate over prisoners' right to vote, where all governments since 2005 have been reluctant to amend the law despite continuing pressure from the Strasbourg Court, for reasons of political expediency.
? Public opinion is a crucial pressure on the government at election time as parties try to capture floating voters, but may also be a significant force between elections at party conferences and in the constituencies.
? Political expediency may lead to the decision that it is not worth implementing an unpopular policy even if it saves money. P12 o For example, strong commitment of successive governments over past 25 years to longer sentences and increased use of custody resulting in expansion of prison system to show to the public that concerns on crime were being taken seriously.
? Conversely, a government may negotiate these conflicts by trying to formulate policies which appear to protect the public while reducing costs.
? A government may find it is unable to relinquish a policy because it is so popular.
? Garland notes that local democratic political traditions may also play a key role, as the structure of American polity makes it difficult to abolish the death penalty in the face of majority public opinion and deprives governing elites of the opportunity for top-down, counter-majoritarian reform. o The levels of public punitiveness and support for penal expansion in the United States also vary from state to state depending on the local and state level institutional structures.
Lacey has argued that neo-liberal market economies with first-pastthe-post systems are more favourable to exclusionary penal policies and expanding prison populations than systems based on proportional representations, and issues of penal policy should be depoliticised to address the problem of prison expansion.
? Powerful interest groups may also affect policy regardless of which government is in power. P13 The costs of punishment
? Penal policy can be seen as the result of a negotiation between the desire to sanction a moral code and the problem of limited resources to do so.
? Some popular policies have proved expensive, such as the 'three strikes' legislation found in many states in United States.
? Financial concerns have become increasingly important since the early 1990s because increased punitiveness ahs been reflected in prison expansion which has led to substantial cost increases.
? Dobson highlights reliance on use of custody, which is the most expensive penal option.
? The focus on value for money is a key feature of the New Managerialist approach reflected in the New Public Management. P14
? Some offences may be seen as uneconomic to punish.
? A heavier sentence is more expensive than a lighter sentence.
? The number of prisons has been reduced as some have merged while others have closed, and the move is towards fewer but larger prisons.
? Fox and Albertson argue that more economically efficient alternatives to prison need to be explored.
? As well as running costs, there are capital costs of building prisons and indirect costs. P15
? Research by Grimshaw et al (2010) for the Centre of Crime and Justice Studies found that by 2010 spending on the prison and probation system in England and Wales has grown by 36% in real terms since 2004.
? The Conservative government indicated in November 2015 that it will invest PS1.3bn in the prison estate over the next 5 years to make it more efficient and effective in supporting rehabilitation. Public opinion and the role of the media
? Public opinion may be expressed through electoral choice, public opinion polls, focus groups, or sometimes by direct pressure on sentencers.
? Although the public complain that judges and magistrates are out of touch with what the public want, this perception of judges has been challenged by recent empirical research on the judiciary (Darbyshire 2011).
? Public opinion and moral panics can be fanned by the media. o Since late 1980s, public mood in Britain has been more favourable to punishment as the main response to criminal behaviour.
? Brownlee argues that the populist punitiveness of governments is problematic because it reinforces the view that crime can be
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