Redemption and Risk: Social enquiry and the new penology

1
Redemption and Risk Social enquiry and the new
penology

• Fergus McNeill
• Glasgow School of Social Work
• Universities of Glasgow and Strathclyde
• Fergus.McNeill_at_strath.ac.uk

Dr. Nicky Burns Law School University of
Strathclyde Nicola.Burns_at_strath.ac.uk
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Social enquiry and the new penology

• From old to new penology
• From welfare to risk
• From treatment to management
• From individuals to groups (dividuals)
• From mitigation to responsibilization
• From professionalism to managerialisation
• Evidence of transformation in the discourses,
  objectives and techniques of penality (Feeley and
  Simon 1992)
• Social enquiry separating the incorrigible
  from the reclaimable?
• Discourses of selection and suitability
• Rationales for leniency and for punishment (by
  de-selection)

3
Harris (1996)

• in their observational, reporting, recording
  and interventive activities probation officers
  are story-tellers par excellence, offering up for
  the consumption of other professionals not the
  truth tout court but a rendition of it which
  will be comprehensible and acceptable both in the
  language of their own invisible trade
  (Pithouse, 1987) and in that of their intended
  audience. But probation officers are not mere
  narrators standing aloof from the action,
  commenting, interpreting and advising in
  dispassionate terms. On the contrary, their
  narratives have about them a tactical aesthetic
  designed to promote a humane response from their
  audience, and even to inculcate a set of
  socio-political ideas by insinuating speculative
  but plausible social explanations of a specific
  criminal act into a quasi-legal document. This is
  narrative as action indeed
• Probation is marginal as a profession and
  marginal to criminal justice, social work and
  both central and local government. It claims a
  libertarian and egalitarian value base but daily
  imposes control on its charges in particular by
  the suspensiveness of its power (p118)

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Research question and methods

• Part of a larger multi-method study of social
  enquiry and sentencing in the sheriff courts
• What does the contemporary report writer try to
  communicate to the sentencer, why are these
  particular messages selected and how are they
  communicated?
• Research sites and participants
• A qualitative approach participant observation
• Fieldwork diary
• Observing cases
• Shadow writing
• Post-observation interviews

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Regulation, reflexivity and agency

• Surround, field and frame (Hawkins, 2002)
• A fourth level form
• The operationalisation of frame in a given case
  or situation practice
• Report writers as marginal actors in the field
• Surviving the margins and constructing influence
• Reflexivity and agency
• Acquiring and employing capital in the field of
  criminal justice

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Creating the narratives constructing and revising

• Authorship
• Redrafting earlier authors versions
• Social worker, offender, and other voices
• SW-led, shared and contested authorship
• Coherence
• Consonance and dissonance within the new
  narrative
• Communication
• Persuasive and ambivalent
• Competing discourses?
• Selection seriousness and suitability
• Technical and/or moral grounds for selection
• Redemption scripts and (implicit) condemnation
  scripts (Maruna 2001)

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Constructing Geena and Patrick

• Geena
• Social worker and practice teacher
• Qualified for more than five years, specialist in
  criminal justice social work
• An enthusiast, committed to effective practice a
  moderniser?
• Patrick
• Male, early 20s, 40 previous convictions,
  history of drug misuse, on remand for possession
  of class C drugs, theft and possession of an
  offensive weapon and now in breach of an existing
  probation order, of bail and of release licence

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SER summary

• Current situation
• Partner and daughter
• Fraught relationship instability
• Disadvantage
• The area
• His history of loss
• Educational disruption
• His mothers withdrawal
• Patricks victimisation
• Drugs
• History of use and of unsuccessful change efforts
• Problems accessing structured support
• Current honesty and motivation

• Offending
• Long history
• Drug-related
• Honesty, remorse and insight
• Weapon but no intent to harm
• Options
• Breaches of previous orders
• Need to tackle drugs issue to reduce re-offending
• Defer to allow him access to services, under
  threat of strict enforcement

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Geenas Patrick?

• Authorship
• Geena drafts a narrative that Patrick confirms
• For example Geena tells Patrick that she will
  be saying to the sheriff that custody has not
  addressed his addiction problems and will suggest
  a 3 month deferment. Patrick nods, but says he
  is going to jailGeena says that what he needs
  is a good conversation with a drug counsellor,
  Patrick agrees (Diary week 12).
• Coherence
• The story of Patrick a consonant narrative of
  redeemability but with dissonant elements?

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Redeeming Patrick

• For Geena, Patricks drug use is the main issue
  for her, from which his offending stems. Geena
  is trying to tell the sheriff that he is
  motivated and by noting his honesty in telling
  her about drugs, she is trying to show that he
  wants help. (Fieldwork diary week 12, p.20)
• Mr Swan was open and honest about his drug use
  and at our last probation meeting expressed a
  willingness to engage with the addiction
  services. However, he was incarcerated before he
  had the opportunity to speak to a trained drug
  counsellor (SER Case 19, p.4)
• According to Mr Swan his offending behaviour has
  mainly been influenced by his drug dependency
  problems. With regards to the offences before the
  court, Mr Swan has accepted all responsibility
  for all charges. He frankly admits that he
  offended on the date by stealing a quantity of
  personal goods for financial gain. Mr Swan was
  able to demonstrate a degree of regret and
  remorse for the offence committed. He was able to
  understand the direct correlation between his
  drug dependency and his offending (SER Case 19)

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Geenas Patrick (contd.)

• Communication
• Persuasive consonance, but
• Dissonance lends credibility
• Her mentioning of the two probation orders shows
  that she is not daft and is being realistic
  with the court (Diary week 12).
• Competing discourses?
• Technical and moral grounds for selecting Patrick
• Risk as a rationale for leniency
• It is the authors opinion that Mr Swan remains
  at high risk of re-offending if he does not
  address his addiction difficulties and breaks his
  cycle of offending behaviour (SER case 19).
• Redemption and/for risk reduction?

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Tactics and strategies

• Geena on the margins of social work survival and
  influence
• No, we don't have any direction, any influence,
  they social work managers are not interested in
  what we do and how, as long as we get reports to
  court So it's us and seniors, we really apart
  from us getting told off about something
  (Interview Geena).
• Geena on the margins of criminal justice
  survival and influence
• The writer has informed Mr Swan that she is
  prepared to work with him during probation,
  however, if he were to miss any appointments or
  fail to engage with the addiction services she
  would alert the court to this (Case 19 SER).
• Geena tells me that she is showing that she is
  accountable to the court and that she will do
  her job to ensure that Patrick complies (Diary
  week 12).

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Performing Geena

• Geena the moderniser the what works agenda,
  discourses of risk and getting involved
• Geena goes on to note that many of the older
  staff members feel that what works is just
  another flavour of the month with management,
  a way of seeing more clients in less timeshe
  however doesnt see it this way, its about
  trying to improve service (Diary week 1).
• Geena the traditional social worker
• Patrick states again that he is going to prison
  again and starts to cry. Geena tells him that
  all is not lost. Patrick shakes his head I
  always go back to smack
• G Why do you think you do that?
• P Make me forget
• G Is this a conscious decision you have made to
  seek help?
• P Yes
• G Thats a really mature attitude to take (Week
  12 22/10/2003)

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Discussion

• Preparing social enquiry reports is a kind of
  pre-sentencing focussed on selection
• The process is heavily regulated (structured) but
  is also (often) highly reflexive (agentic)
• SER authors often strive to construct consonant
  and persuasive narratives that provide moral and
  technical evidence of redeemability (rationales
  for leniency?) though they also sometimes
  condemn implicitly by failing to construct such
  accounts (dissonant and neutral narratives)
• Even the modernisers who best reflect and
  express the features of the new penology continue
  to trade in the discourses of the old at the
  level of practice, the old and the new are
  blended together in attempts to construct
  influence (cultural capital?) in the field of
  criminal justice
• Welfare re-legitimated by risk
• The promise of effectively managed treatment
• Patrick as an individualised dividual
• Mitigation for and responsibilization of Patrick
• Geena as a managerialized professional

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Conclusions

• Penal professionals are complex social actors
• The relationships between shifts in penal
  policies and shifts in penal practices are
  complex and contingent
• Changes in the surround and the field do not
  influence frames and forms in a linear
  fashion forms of practice are both produced by
  and producers of frames, field and surround.
• Put another way, penal actors are not passive in
  the face of changes in the field and surround
  they can respond with enthusiasm, compliance,
  resistance and/or subversion their strategies
  can be conscious and reflexive (see also Robinson
  and McNeill 2004)
• Frames and forms needs to be explored
  ethnographically in order to understand the
  inter-relationships between form, frame, field
  and surround for different penal actors. This
  kind of enquiry seems best suited to revealing
  how penality is culturally produced and
  re-produced in practice
• A better understanding of these processes of
  production and reproduction is a pre-requisite of
  effecting change in penal systems

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References

• Feeley, M. and Simon, J. (1992) The new
  penology notes on the emerging strategy of
  corrections and its implications, Criminology
  30 449-474.
• Harris, R. (1996) Telling tales probation in
  the contemporary social formation, in Parton, N.
  (ed.) Social Theory, Social Change and Social
  Work. London Routledge.
• Hawkins, K. (2002) Law as Last Resort
  Prosecution Decision-Making in a Regulatory
  Agency. Oxford Oxford University Press.
• Maruna, S. (2001) Making Good. Washington
  American Psychological Association.
• Pithouse, A. (1987) Social Work the Social
  Organisation of an Invisible Trade. Aldershot
  Gower Press.
• Robinson, G. and McNeill, F. (2004) Purposes
  Matter The Ends of Probation in Mair, G. (ed.),
  What Matters in Probation Work. Cullompton
  Willan.

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Justifying assistance, in the public interest

• Sh 8 I looked at it from the point of view of
  dealing with a man in his early twenties with
  an absolutely horrendous record, serious
  problems, not much in not much positive to be
  said and yet the emphasis in the report appeared
  to be for some form of probation and assistance.
  Assistance is all very well if he's at an age,
  stage and position where he can take advantage of
  it but it doesn't appear to me from reading this
  report that this man was anywhere in the realms
  of getting that sort of disposal in the public
  interest. Maybe in his interest but it doesn't
  appear to be in the wider public interest that
  would be a likely outcome.

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Hope and hopelessness

• Sh 10 I look first of all at the complaint
  and then look at the previous convictions. What
  this would tell me is that the accused is looking
  at a maximum custodial sentence but that he is
  such a bad offender where custody has had no
  possible benefit and is unlikely to be of any
  benefit other than keeping him away for a short
  period, that I may well be looking at the social
  enquiry report to see if there are any realistic
  reasons or proposals for a sentence other than a
  maximum custodial sentence... it is looking for
  hope in a hopeless situation. That's the
  approach I come to -

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Patrick Bad and hopeless

• Sh 9 Is there any good reason for deflecting
  this man from custody?
• Intv And is there?
• Sh 9 I don't think so, no.
• Sh 8 Not reading the report, no.
• Sh 9 He's a very, very bad offender he's
  only in his early twenties and he's got a
  terrible record.
• Intv I mean how would you characterise this
  guy?
• Sh 9 A hopeless case, to be honest.
• Intv That's something else I was going to
  ask you, whether you thought there was any hope
  here.
• Sh 9 I think he is no, it doesn't look like
  it.
• Sh 8 He appears to be in the throes of a
  dreadful addiction to drugs and unable to sustain
  any assistance of any sort from anybody to try
  and deal with it in any united way for any length
  of time because his record shows he's just
  constantly in trouble.

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Managing sentencing?

• Intv And you think the social worker should
  play a part in managing acceptance of the
  sentence?
• Sh 10 I don't think the social worker no, I
  don't think the social worker should be saying as
  the defence agent will Look, with this record
  you're facing a maximum sentence, I will try to
  persuade the court A, B, C but I have to tell you
  and you will know you're facing a maximum
  sentence and you're lucky not to be on
  indictment. Now, she has upset the system by
  associating herself too closely with the accused,
  I think.
• Sh 9 Yes.
• Sh 8 Uh-huh, it's quite clear
• Sh 10 I haven't seen that phraseology before.
• Sh 8 No I haven't either but it's clear from
  reading the last two paragraphs that the author
  of this report thinks that this person should be
  placed on probation again and that she will
  support him in endeavouring to achieve a
  successful outcome on a probation order which, as
  history tells us, is extremely unlikely at this
  stage. And I think it takes away from the
  independence of the report.
• Sh 9 Uh-huh, yeah, absolutely.