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Justice or crime control – what should the criminal process deliver?

Penelope Gibbs
01 Jul 2018

This guest blog is from Professor Mike Hough, one of our greatest criminologists, who has worked both in government and academia. He reflects on questions that “have preoccupied me for most of my research career – reflecting arguments between penal hawks and penal doves”:

Why do we obey the law?

Because most of us think it is wrong to commit most crimes, and we have acquired the habit of obedience to the law. This habit is normatively grounded, learnt in our upbringing. The family, schooling and, for some people, religion are some of the key institutions that pass on to us the social norms by which we live. Criminology would do better to ask, ‘Why do we obey the law?’ rather than, ‘Why do they break the law?’ 

What is the point of the criminal justice system, in that case?

The criminal justice system serves as a formal institutional support to the informal processes of social control that encourage us to adhere to social norms. It is a system of deterrent threat that is – or should be – applied to behaviour that is most transgressive of social norms. However its core functions are symbolic and declaratory.

But isn’t the criminal justice system the set of institutions that actually control crime?

No. These institutions affect crime rates at the margin, but they are not the main driver of crime trends. This is true of the work of the police, the prisons and the probation service. The evidence for general deterrence, special (or specific) deterrence and rehabilitation is very far from clinching.

Most of us have been well socialised. We don’t lie (much). We don’t steal (much). We are rarely physically violent and feel very remorseful if and when we are. But a small minority of people have not responded to all the attempts to regulate their behaviour. Parental discipline, school discipline, workplace discipline doesn’t exercise much purchase on them. It has always struck me as strange when penal hawks argue that punishing people more and punishing them harder is the best way of dealing with those who are inured to punishment, and those who have the freedom of the dispossessed.

Who are these people?

There is some evidence that deprivation and high levels of stress from early childhood may be implicated. There is also evidence that the children who surround us as we grow up affect whether we get involved in crime. People who grow up in strained, disorganised neighbourhoods are more likely to have friends involved in crime. And the justice system tends to over-focus on the control of these strained, disorganised neighbourhoods, and may actually amplify people’s commitment to engage in crime. I am certainly not saying that everyone who comes from a poor or disadvantaged background ends up in trouble with the law. But those entangled in the criminal justice process are disproportionately disadvantaged. Our prison populations contain: more than their fair share of graduates from our ‘care’ system; far too many people who failed at school; too many people lacking in skills that allow them to get good jobs; and far too many people from the poorest neighbourhoods.

This is not the whole story, of course. There is plenty of middle-class crime, plenty of well-educated fraudsters, plenty of well-spoken graduates who beat up their partners. (But well-educated middle-class psychopaths are more likely to end up in the boardroom than in prison.)

And of course, many of us are, in relation to some laws, rational calculators. Think motorway speeding. Think congestion charges. Many people believe that systems of deterrent threat must obviously work, drawing on their own personal responses to laws of this sort. And there really is a small group of very dangerous people for whom prison is the only answer.

So why do politicians speak as if their policies can really keep the lid down on crime?

Because they are politicians. They have to engage with their electorate – usually via the media – in ways that will immediately resonate with their audiences.  The last Home Secretary who I heard arguing on TV that the penal world is complicated, and that it is very difficult to find good solutions, was Labour’s Merlyn Rees in 1977 or so. He came across as a muddle-headed ‘softie’, rather than the erudite and humane person that he was. Politicians who think they have their hands on the levers that control crime can make very bad mistakes – David Blunkett imposing very lengthy life sentence tariffs and his indeterminate imprisonment for public protection, for example; or Chris Grayling’s rehabilitation revolution that dismantled the probation service.

So what should politicians aim to do with the justice system?

Actually, quite a lot.

  1. First, observe principles of penal parsimony. Punish as little as possible, to free up resources for spending where expenditure does good.
  2. Second, ensure that the system really commands legitimacy, especially amongst those who are most caught up in the justice process. Legitimacy should be the touchstone of criminal policy.
  3. That means that policies and practices in policing, the courts, the prisons and probation need to be properly aligned with mainstream moral values.
  4. It also means that the criminal law should only be deployed against behaviours where there is a real consensus about criminalisation.
  5. Police and justice officials should meet standards of behaviour that are respectful, fair, legal and even-handed.
  6. And when the police are engaged in tackling particular outbreaks of crime they must take care that in winning the battle, they do not lose the war.
  7. It is possible for some people to help other people straighten up their lives under some circumstances. Generalising about what it is that helps people on the road to desistance is risky, because we are individuals and we all differ.
  8. Finally, Home Secretaries and Justice Secretaries should not be too programmatic in searching for ‘what works’ programmes that they can introduce to solve crime. Similarly the prison and probation services – and now community rehabilitation companies – should take care not to over-promise about the scale of change that they can help bring about in the lives of those in trouble with the law.

If politicians and senior managers in the justice system follow the principles that I have sketched out, we might end up with a justice system that serves effectively to support the processes of informal social control that are the primary determinant of our behaviour. The product of the justice system, first and foremost, has to be justice, rather than crime control.

NB This guest blog originated as the introduction to an event hosted by the School of Law at Birkbeck, Punishment on Trial as part of the School’s annual Law on Trial programme. The event, in June 2018, involved three question-and-answer sessions in which staff from Birkbeck’s Institute for Criminal Policy Research put questions to penal experts. Mike says “my answers may look like loose generalisations, though I think I can evidence most of what I have to say”.