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What is Justice? Working papers

Following the success of the Howard League’s What is Justice? Re-imagining penal policy conference, contributors were invited to submit a paper based on their presentation and to provide pointers about how their research contributes to a re-imagining of penal policy which supports the symposium’s aims, in particular a reduced role for the penal system while maintaining public confidence, fewer victims of crime and safer communities.

Each of the papers appearing as part of this series has been peer reviewed by members of the Howard League’s Research Advisory Group. Papers have been grouped on the website under the three What is Justice? hubs:

Some papers appear in more than one hub.

Local justice and participation

Post-YOT Youth Justice – Working paper 19/2015

Ben Byrne and Kathryn Brooks, Surrey Youth Support Service

Abstract: This paper looks at the potential to develop a post-Youth Offending Team (YOT) strategy to deliver a child-centred response to children and young people who offend. The authors draw upon practice experience from Surrey’s Youth Support Service, placing this in the context of national developments in youth justice and integrated support for young people. The authors argue that the underpinning architecture of New Labour’s youth justice is now under threat and a range of competing possibilities exist for what will replace it. The paper provides detail of Surrey’s departure from orthodox YOT arrangements and describes the development of an informalised, restorative, and integrated response to supporting young people who have offended. Central to this approach is the organising theme of participation for vulnerable and socially excluded young people and the move away from reliance upon discrete services for ‘offenders’.

Underpinning these developments is a theoretical perspective which views authentic relationships as the dynamo for change. This is contrasted with prevailing YOT models, which rely heavily upon specialist referrals and expert ‘fixes’. The opportunities identified in this paper are heavily mediated by local factors, which have the potential to lead to significantly differentiated responses to youth offending between local authorities across England, with no guarantee that developments in all places will be positive for young people in contact with the youth justice system.

Balancing positive engagement and transparent risk analysis with volatile youth: Introducing the Tightrope Tool – Working paper 18/2015

Dr Roberta Evans

Abstract: This paper presents a tool that encourages the engagement of the young person in the analysis of their risks, strengths and needs and in the planning of actions based on a balanced and transparent holistic assessment. It will introduce the analogy of the Tightrope, outline how it fits with current assessment frameworks to support an integrated approach and considers the role of the practitioner to apply a person-centred, strength-based approach with the tool. This paper will outline why an integrated and interactive holistic tool for volatile youth would be of benefit to both young people and professionals from various disciplines and concludes with an invitation to experienced practitioners to trial the tool in wider practice.

Re-considering youth justice in the context of radical moral communitarianism – Working paper 16/2015

Roger Hopkins Burke, Nottingham Trent University

Abstract: The New Labour social policy and criminal justice agenda between 1997 and 2010 was influenced by a communitarian philosophy that had come to prominence in the USA during the 1980s, which proposed that individual rights as promoted by traditional liberals needed to be balanced with social responsibilities (Etzioni 1995a, 1995b). Nowhere was this influence more apparent than in the flagship criminal justice legislation, the Crime and Disorder Act 1998, the creation of the contemporary youth justice system (the Youth Justice Board and Youth Offending Teams) and the mantra of Prime Minister Tony Blair ‘tough on crime, tough on the causes of crime’. Thus, young people who offend should take responsibility for their actions while, at the same time, the new system should seek to ameliorate the personal and social conditions that had impacted negatively on their behaviour. Critics of the pragmatic implementation of these communitarian policies were to nevertheless observe an authoritarian overemphasis on the responsibilities of individuals, to the detriment of their rights, and this was to become readily apparent to critics of a youth justice system which had absorbed an increasing number of young people into its ever widening net (Hopkins Burke, 2008). This paper briefly considers the notion of communitarianism, its influence on the contemporary youth justice system and contemplates the implications for that system and young people by the adoption of policies based on the notion of radical moral communitarianism (Hopkins Burke, 2014a, 2014b), with its notions of consensual interdependency, a fair and (more) equal division of labour and an appropriate balance between the rights and responsibilities of all citizens in society.

Democratic futures: Crowdsourcing incident data – Working paper 15/2014

Alistair Sackley, Communities, Hampshire County Council

Abstract: Recent developments in repeat victimisation research include the identification of high risk targets who share similar characteristics to previous victims. This is known as near repeat victimisation or near repeats. The concept of ‘nearness’ can apply to similar targets encountered in similar circumstances. The result is that the study of repeat victimisation is beginning to merge with other areas of crime concentration. The key issue is the similarity of crimes. A range of research suggests the importance of repeat victimisation for crime prevention is that it provides useful information about the where, when and what, because crimes tend to happen against the same or similar targets, and because, if it is known how the crime happened previously, it can also be known how to prevent its recurrence. Therefore, the question to ask is no longer whether repeat victimisation is relevant to crime reduction, but rather how the mechanisms and contexts that are most helpful in achieving the greatest reduction can be identified. This paper offers a discussion that looks to address and manage crime democratically in real-world contexts based on experience with Hampshire Constabulary and suggests a Web Science perspective to pick apart the ramifications.

Industry participation in the correctional mandate in Japan: The case of the Shin-Kurushima Dockyard – Working paper 13/2014

Bunji Sawanobori, Professor of Constitutional Law, Nanzan University, Japan

Abstract: The Shin-Kurushima Dockyard is a working shipyard in Ehime prefecture, Japan, which has offered vocational training and experience free of charge to prisoners from Matsuyama prison for over 50 years. It also offers accommodation on the same premises, again free of charge. Prisoners who live and work at the Dockyard are normally granted early release from imprisonment, at about sixty per cent completion of their sentence on average, and their recidivism rate is low in comparison with Japan’s average: zero per cent for the last 5 years and 15 per cent for about 30 years from its establishment in 1961 until 1992. This paper explores the participation of the Shin-Kurushima Dockyard in the Japanese criminal justice system, looking at the origins of the project, the dynamics between the prisoners and the local community, and the way that the prisoners live in comparison with mainstream Japanese prisons. The paper also compares statistics on the parole and recidivism rates of Dockyard prisoners with mainstream prisoners. The paper concludes with the observation that access to meaningful work and being treated with dignity and respect have been key to the success of the Shin-Kurushima Dockyard in the criminal justice system.

Driving penal reform – Working paper 12/2014

Mary Rogan, Head of Law and Assistant Head of the School of Languages, Law and Society, Dublin Institute of Technology, Chairperson of the Irish Penal Reform Trust

Abstract: For organisations and individuals involved in penal reform, influencing policy can be frustrating, slow and enigmatic. Models of penal change can provide guidance regarding the drivers of and influences on penal policy, and analysing the policy process can offer both theoretical insights and practical lessons for penal reform groups. This paper seeks to add to the growing literature on policymaking by exploring the example of the Republic of Ireland, which is in the process of changing its penal policy from one which prioritised penal expansion to one which advocates a decarceration strategy. The particular experience of Ireland since 2011 indicates a number of learning points for penal reformers, including the importance of grasping the opportunity presented by a change of government, establishing links with all parties, and, in some cases, providing a research function for politicians in order to create the best chance of having policy positions included in political commitments. The paper also explores the influence of international and domestic mechanisms for the protection of human rights on penal change, as well as the actions of senior prison officials. The case of Ireland shows that policies emphasising penal expansionism can be reversed through a combination of a favourable, or at least distracted, political culture, energetic individuals, and NGOs willing to work constructively with policymakers.

Effective participation or passive acceptance: How can defendants participate more effectively in the court process? – Working paper 9/2014

Amy Kirby, Jessica Jacobson and Gillian Hunter, Institute for Criminal Policy Research, Birkbeck, University of London

Abstract: This paper presents the findings of a 20 month Economic and Social Research Council funded study into the public’s experiences of the Crown Court. The aim of the study was to examine victims’, witnesses’ and defendants’ (court users’) levels of understanding and perceptions of the treatment they received at the Crown Court, and to assess the extent to which they regard court processes and outcomes as fair and legitimate. The study also explored the nature of the interplay between the different players – including legal professionals and court users – in the courtroom. There were three strands to the research: interviews with criminal justice professionals and practitioners, interviews with court users and observations. A key finding that emerged through the research was the apparent limit of defendants’ ‘effective participation’ at court. This issue is the focus of the paper.

The [re]settlement of women prisoners in Northern Ireland: From rhetoric to reality – Working paper 8/2014

Jacqueline Kerr, University of Ulster

Abstract: Penal practices in Northern Ireland are fashioned around the legacy of civil unrest and the imprisonment of politically affiliated prisoners. Women represent a small percentage of the prison population, and most are sentenced for minor ‘offences’, including non-payment of fines. Women exiting prison share histories of severe social exclusion and complex unmet needs in relation to housing, employment, income, education, training, and mental and physical health. Recently, the introduction of a strategy for the management of women who offend, gender specific standards for working with women prisoners and the establishment of the probation-led Inspire Women’s Project, have marked an acknowledgement of women’s penality by the Department of Justice. This paper draws upon primary qualitative research data on women’s resettlement experience in Northern Ireland to consider the correlation between gender responsive measures and the increasing criminalisation and imprisonment of severely disadvantaged and marginalised women. It explores the failure of gender responsive initiatives to reduce the Northern Ireland female prison population, it examines professional discourse which privileges the responsibilisation of women and the language of choice and reflects upon the up-tariffing of women on the basis of their unmet need rather than the seriousness of their offending.

The ‘Great Recession’ and criminal justice: The value of scarcity? – Working paper 7/2014

José Ángel Brandariz García and David Castro Liñares, University of A Coruña, Spain

Abstract: The paper takes as its starting point that what has been termed the ‘Great Recession’ signifies the beginning of a new phase, with significant implications for the field of crime and punishment. Over the last few decades, market rationale as an organising principle has penetrated criminal justice public policies. However, there has been a tendency to overlook the economic principle of resource scarcity, and the recent evolution of the penal system in many jurisdictions appears to be characterised by an expansion which took for granted the unlimited elasticity of public resources. The paper looks at the cases of Spain and the United States, both countries that have seen recent contractions in their penal systems, and suggests that the economic crisis has led to the penetration within the criminal justice system of the concept of scarcity. The paper concludes with a suggestion to examine in depth the reasons underlying the change of tendency in the US case, in order to encourage a similar reduction in other jurisdictions.

Judged by peers? The diversity of lay magistrates in England and Wales – Working paper 6/2014

Penelope Gibbs, Transform Justice, and Amy Kirby, Birkbeck, University of London

Abstract: The criminal justice system of England and Wales relies heavily on members of the public – ‘lay participants’ – in administering justice. The roots of lay participation lie in the notion of participatory democracy, specifically ‘judgement by one’s peers’ (Sanders, 2002; Crawford, 2004; Gibson and Cavadino, 2008). The use of juries and lay magistrates offers an inclusive form of justice involving people without legal education passing judgement on fellow members of society. Any member of the public aged between 18 and 65 can apply to become a lay magistrate, and as Crawford (2004) has highlighted, it is important that lay participants in criminal justice adequately reflect the communities which they serve. This paper questions the representativeness of lay magistrates in their locality, through analysing existing evidence on the lay magistracy’s composition and linking that to trends in the recruitment of magistrates. The paper argues that lay magistrates are in some ways less diverse than they were at the turn of the century; being older, less representative of England and Wales’ BAME population and possibly more middle class.

Justice and prisoners’ families – Working paper 5/2014

Anna Kotova, University of Oxford

Abstract: Previous research has shown that prisoners’ families in the UK are greatly affected by imprisonment: financially, socially, emotionally and practically. Despite an ever-growing body of literature, however, the topic of prisoners’ families has not yet become one of the key themes in criminology and the sociology of punishment. Criminal justice policy has also failed to engage with the needs of prisoners’ families, with criminal justice discourse being largely focused on justice as defined by punishments and deserts. Building on the concept of social justice, this paper argues that a broader understanding of justice within criminal justice is sorely needed if social justice is to be achieved for prisoners’ families. It then discusses four types of injustices that are highlighted by thinking of prisoners’ families through a social justice lens. It concludes that to do justice for prisoners’ families, there is a need to broaden the meaning of justice in criminal justice, and discuss social justice and the collateral consequences of imprisonment.

Imagining penal policy for women: The case for Women’s Community Services – Working paper 4/2014

Polly Radcliffe and Gillian Hunter

Abstract: The Women’s Community Services (WCSs) established in 2009 in England and Wales were based on the model of one-stop-shop, women-only provision endorsed by the 2007 Corston report. In this paper we discuss the development of WCSs as part of a governmental/voluntary sector initiative that was arguably an attempt to re-imagine penal policy for women offenders in the community, and explore themes emerging from interviews carried out with 30 women attending six WCSs between April 2011–2012. We argue that WCSs have filled a gap in provision for low risk women offenders by providing a range of social capital opportunities that are not available in mainstream, mixed-gender community punishment provision. We highlight the gendered processes of desistance; the understanding of which, we argue, is vital in making provision for women offenders in the new contracting landscape.

Social justice, human rights and penal policy

The pain and purpose of punishment: A subjective perspective – Working paper 22/2016

Esther van Ginneken, Assistant Professor in Criminology Leiden University, the Netherlands

Abstract: Punishment is one of the purposes of sentencing and may additionally serve instrumental functions, primarily the reduction of crime. However, the current sentencing framework rests on a flawed understanding of the experience and severity of sentences. Punishment can be experienced in a variety of ways and the severity of a sentence depends on individual circumstances and vulnerabilities; subjective severity is also inextricably linked to inequality in society. Sentencing guidelines have been introduced with the aim of achieving consistency in sentences, with more severe punishment for more serious offences. However, it is necessary to move away from the idea that we can objectively rank severity of punishment and give more consideration to what it is supposed to achieve. Regarding imprisonment, it currently fails to communicate to prisoners what it is for and neither does it appear to achieve rehabilitation or deterrence. Yet, the legitimacy of the Criminal Justice System rests on perceptions of fairness, not only of victims and the public, but also of those subjected to punishment. A ‘just’ criminal justice system should therefore consider subjective experiences in sentencing and the implementation of sentences. This paper advocates a commitment to communicative punishment, with offenders as active participants in the process of shaping their punishment.

Effective participation in the youth court – Working paper 21/2106

Miranda Bevan

Abstract: The youth justice system in England and Wales functions on the basic premise that children and young people should be afforded greater protection and support than adults when they face a criminal allegation. However, consultation responses received during the Law Commission’s project on unfitness to plead have laid bare the surprising reality that, for a child or young person who has significant difficulties participating effectively in their trial, there is less statutory protection than for an adult in the same situation.

This paper explores the measures available in the youth court to ensure the effective participation of a young defendant. A worked example is used to illustrate the concerning difference in treatment between an adult who is unfit to plead in the Crown Court and a young person with comparable difficulties dealt with in the youth court. The paper then considers why a more suitable response to such issues is so critical for young defendants facing trial in the youth court. Reform to the options available in the youth court for defendants with participation difficulties is then considered in light of observations made by consultees to the Law Commission’s unfitness to plead project. In particular the paper addresses the need for a statutory test to identify when a defendant is unable to participate effectively in the proceedings and the introduction of fairer fact-finding procedures with constructive and robust disposal options.

Punishment, prisoners and the franchise – Working paper 20/2015

Cormac Behan, The University of Sheffield

Abstract: In 2005, the European Court of Human Rights ruled that the UK law banning all convicted prisoners from voting contravened the European Convention on Human Rights. Despite numerous court cases – both domestic and European – extensive consultations and a parliamentary committee established specifically to consider the issue, successive UK governments have rejected this judgment and resisted changing the law to allow prisoners access to the franchise. This paper begins by considering the key arguments for and against the enfranchisement of prisoners, many of which have been used in the debates on the issue. It analyses why prisoner voting has caused so much controversy in the UK and why parliament continues to maintain a blanket ban. It examines the experience of prisoner voting in other jurisdictions and finds little evidence for the contention that allowing prisoners access to the franchise will have a detrimental impact on the democratic process. It concludes with an argument in favour of allowing prisoners to vote.

Neurodisability in the youth justice system: recognising and responding to the criminalisation of neurodevelopmental impairment – Working paper 17/2015

Nathan Hughes, University of Birmingham, UK; Murdoch Childrens Research Institute, Australia; University of Melbourne, Australia

Abstract: A recent comprehensive review of research evidence reveals a disproportionately high prevalence of neurodevelopmental disorders amongst young people in custodial institutions that is consistent across various international contexts (Hughes et al., 2012). This reveals a widespread failure of current practices and interventions intended to prevent offending and reoffending to recognise or to meet the needs of these vulnerable young people, and therefore promotes a fundamental rethinking of the approaches of the youth justice system. Cognitive and emotional traits associated with specific neurodevelopmental disorders increase the propensity to antisocial or criminal behaviour, as well as heightening susceptibility to a range of negative social experiences that further increase risk of criminality. An awareness of this vulnerability emphasises the role that could be played by family support and education services in reducing the risk of future criminal behaviour due to neurodevelopmental impairment, if underpinned by models of Therapeutic Justice and Justice Reinvestment. Furthermore it serves to challenge the processes within youth justice systems that serve to disable, and ultimately criminalise, young people with neurodevelopmental impairment. Such processes include inadequate forms of assessment and screening, and inappropriate assumptions of verbal and cognitive competence that underpin legal processes and youth justice interventions.

Re-considering youth justice in the context of radical moral communitarianism – Working paper 16/2015

Roger Hopkins Burke, Nottingham Trent University

Abstract: The New Labour social policy and criminal justice agenda between 1997 and 2010 was influenced by a communitarian philosophy that had come to prominence in the USA during the 1980s, which proposed that individual rights as promoted by traditional liberals needed to be balanced with social responsibilities (Etzioni 1995a, 1995b). Nowhere was this influence more apparent than in the flagship criminal justice legislation, the Crime and Disorder Act 1998, the creation of the contemporary youth justice system (the Youth Justice Board and Youth Offending Teams) and the mantra of Prime Minister Tony Blair ‘tough on crime, tough on the causes of crime’. Thus, young people who offend should take responsibility for their actions while, at the same time, the new system should seek to ameliorate the personal and social conditions that had impacted negatively on their behaviour. Critics of the pragmatic implementation of these communitarian policies were to nevertheless observe an authoritarian overemphasis on the responsibilities of individuals, to the detriment of their rights, and this was to become readily apparent to critics of a youth justice system which had absorbed an increasing number of young people into its ever widening net (Hopkins Burke, 2008). This paper briefly considers the notion of communitarianism, its influence on the contemporary youth justice system and contemplates the implications for that system and young people by the adoption of policies based on the notion of radical moral communitarianism (Hopkins Burke, 2014a, 2014b), with its notions of consensual interdependency, a fair and (more) equal division of labour and an appropriate balance between the rights and responsibilities of all citizens in society.

Achieving justice for children in care and care-leavers – Working paper 14/2014

Claire Fitzpatrick, Lancaster University

Abstract: This paper considers some of the issues facing children who have been in care who come into contact with the criminal justice system. There is a particular focus on some of the system-level failures such as unnecessary criminalisation in care homes, and failures to identify and therefore adequately support those in prison custody who have previously been in care. A number of potential solutions to the persistent link between care and criminal careers are then highlighted. In light of the system failures that continue to exist in this area, this paper concludes by arguing that there are strong grounds for exploring whether criminal records obtained in care for minor offences could be wiped when young people leave the care system.

Industry participation in the correctional mandate in Japan: The case of the Shin-Kurushima Dockyard – Working paper 13/2014

Bunji Sawanobori, Professor of Constitutional Law, Nanzan University, Japan

Abstract: The Shin-Kurushima Dockyard is a working shipyard in Ehime prefecture, Japan, which has offered vocational training and experience free of charge to prisoners from Matsuyama prison for over 50 years. It also offers accommodation on the same premises, again free of charge. Prisoners who live and work at the Dockyard are normally granted early release from imprisonment, at about sixty per cent completion of their sentence on average, and their recidivism rate is low in comparison with Japan’s average: zero per cent for the last 5 years and 15 per cent for about 30 years from its establishment in 1961 until 1992. This paper explores the participation of the Shin-Kurushima Dockyard in the Japanese criminal justice system, looking at the origins of the project, the dynamics between the prisoners and the local community, and the way that the prisoners live in comparison with mainstream Japanese prisons. The paper also compares statistics on the parole and recidivism rates of Dockyard prisoners with mainstream prisoners. The paper concludes with the observation that access to meaningful work and being treated with dignity and respect have been key to the success of the Shin-Kurushima Dockyard in the criminal justice system.

The role of the prison lawyer in balancing the scales of justice – Working paper 11/2014

Kushal Sood, Bailey Nicholson Grayson Solicitors

Abstract: Access to justice for prisoners has historically been limited, but in the recent past, as prison law has gained prominence as a stand-alone area of law, there has been much progress with regard to public law challenges made by lawyers on behalf of prisoners. However, prison law funding continues to experience restrictive change – particularly as a result of regulations that came into effect in December 2013 following the government’s consultation paper Transforming Legal Aid: delivering a more credible and efficient system. This paper presents an overview of prison law’s recent history and then considers the extent to which prisoners should be able to rely on taxpayer funded legal advice, and whether or not there are any viable alternatives to legal advice which could be provided at a lesser cost. The paper argues that prison law should continue to be funded both on the grounds of procedural fairness and cost.

Re-imagining justice for children: A new rights-based approach to youth justice – Working paper 10/2014

Kathryn Hollingsworth, Newcastle Law School

Abstract: Over the past decade international children’s rights standards have been used as a tool to analyse and critique the youth justice system in England and Wales and have increasingly formed the basis of legal challenges. However, they have not necessarily addressed some of the major shortcomings in the English and Welsh youth justice system. This paper argues that this is because of a theoretical gap in the practice of children’s rights in youth justice, and thus it attempts to address this by re-imagining justice for children by developing a theoretical basis for some of the key principles in youth justice. It does so by placing children’s rights within a wider rights-based theory of criminal justice.

Are problem-solving courts the way forward for justice? – Working paper 2/2014

Jenni Ward, Middlesex University

Abstract: Problem-solving courts are not a new innovation, but their use and implementation appears to be growing across a number of jurisdictions, including the UK. This development suggests there is belief in the ‘therapeutic jurisprudence’ approach that underpins this style of criminal court adjudication; moreover their growth fits within the discourse which points out traditional criminal justice mechanisms too often leave the offender out as an uninvolved actor in the process (Nolan, 2001; Berman and Fox, 2009; Braithwaite, 1989). Processes that draw people in more closely, making them accountable for their actions, and playing an active role in their rehabilitation are more likely to achieve success at reducing reoffending and assisting people to live altered and reformed lives (Hoyle, 2012). This working paper provides some background detail on problem-solving courts and the central guiding principle of therapeutic jurisprudence, and argues court structures that assist people to construct positive self-identities and reintegrate into purposeful lives, and which empower people to play a role in their rehabilitation demonstrate a criminal justice model that has well-being at its core, and puts a human face to the delivery of justice.

Mothers in prison: The sentencing of mothers and the rights of the child – Working paper 3/2014

Rona Epstein, Coventry University

Abstract: Of the women in prison 66 per cent are mothers of dependent children. Imprisonment of a father or mother entails the forcible separation of a child from its parents and therefore impacts on the child’s rights under Article 8 of the European Convention of Human Rights. Thus sentencing courts are required to obtain information on dependent children and then conduct a balancing exercise weighing the rights of potentially affected children against the seriousness of the parent’s offence. Do the courts always obtain information about the affected children, and are the rights of the child in fact considered by the criminal courts? This is a matter of significance for the welfare of children and for our system of justice. I have undertaken research to explore to what extent, if at all, the required balancing exercise is being carried out in the English criminal courts. The research covered 75 cases of the imposition of custody (suspended and immediate) on mothers who care for a dependent child. My research found that, in general, the rights of the child were not considered when their mothers were sent to prison. I argue that this is a flaw in our legal process, which should be rectified on social, legal and moral grounds. 

Revising Wolff’s support for retribution as a justification for punishment: desistance, rehabilitation and restoring the status of victim and offender – Working paper 1/2014

John Deering and Steven R. Smith, University of South Wales

Abstract: The philosopher Jonathan Wolff has recently supported retribution as a justification for punishment in his book Ethics and Public Policy: A Philosophical Enquiry (EPP). His main argument is that the victim’s status and self-respect has been undermined by a crime committed against her, and the offender, in the process, is effectively stating he is above the law and societal norms and that he has no regard for the victim. Punishment is therefore responding to both these social violations and acts as a communicative mechanism to both offender and victim, restoring the status of the latter by punishing the former. This paper defends Wolff’s main idea supporting retribution, in certain clearly defined cases, but his position needs supplementing. First, when examining the practice of the criminal justice system, we claim that punishment is a necessary but not sufficient condition for restoring the status of the victim. Secondly, any re-balancing of status should occur, not only between the offender and the victim, but also between the offender and wider society – the latter acknowledging the social responsibility of ensuring that marginalised members of society (including many offenders) are not socially excluded, and so are helped or assisted in becoming socially included. We further argue that this latter outcome is best achieved via a process of desistance, which assumes that although individuals have an idiosyncratic journey to becoming a ‘non-offender’, all involve developing socio-economic capital that the individual does not want to place in jeopardy by reoffending.

The role of the state

Driving penal reform – Working paper 12/2014

Mary Rogan, Head of Law and Assistant Head of the School of Languages, Law and Society, Dublin Institute of Technology, Chairperson of the Irish Penal Reform Trust

For organisations and individuals involved in penal reform, influencing policy can be frustrating, slow and enigmatic. Models of penal change can provide guidance regarding the drivers of and influences on penal policy, and analysing the policy process can offer both theoretical insights and practical lessons for penal reform groups. This paper seeks to add to the growing literature on policymaking by exploring the example of the Republic of Ireland, which is in the process of changing its penal policy from one which prioritised penal expansion to one which advocates a decarceration strategy. The particular experience of Ireland since 2011 indicates a number of learning points for penal reformers, including the importance of grasping the opportunity presented by a change of government, establishing links with all parties, and, in some cases, providing a research function for politicians in order to create the best chance of having policy positions included in political commitments. The paper also explores the influence of international and domestic mechanisms for the protection of human rights on penal change, as well as the actions of senior prison officials. The case of Ireland shows that policies emphasising penal expansionism can be reversed through a combination of a favourable, or at least distracted, political culture, energetic individuals, and NGOs willing to work constructively with policymakers.

Revising Wolff’s support for retribution as a justification for punishment: desistance, rehabilitation and restoring the status of victim and offender – Working paper 1/2014

John Deering and Steven R. Smith, University of South Wales

Abstract: The philosopher Jonathan Wolff has recently supported retribution as a justification for punishment in his book Ethics and Public Policy: A Philosophical Enquiry (EPP). His main argument is that the victim’s status and self-respect has been undermined by a crime committed against her, and the offender, in the process, is effectively stating he is above the law and societal norms and that he has no regard for the victim. Punishment is therefore responding to both these social violations and acts as a communicative mechanism to both offender and victim, restoring the status of the latter by punishing the former. This paper defends Wolff’s main idea supporting retribution, in certain clearly defined cases, but his position needs supplementing. First, when examining the practice of the criminal justice system, we claim that punishment is a necessary but not sufficient condition for restoring the status of the victim. Secondly, any re-balancing of status should occur, not only between the offender and the victim, but also between the offender and wider society – the latter acknowledging the social responsibility of ensuring that marginalised members of society (including many offenders) are not socially excluded, and so are helped or assisted in becoming socially included. We further argue that this latter outcome is best achieved via a process of desistance, which assumes that although individuals have an idiosyncratic journey to becoming a ‘non-offender’, all involve developing socio-economic capital that the individual does not want to place in jeopardy by reoffending.

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