Changing Attitudes to Punishment

Julian Roberts, Mike Hough, Julian Roberts, Mike Hough

• Publisher: Willan
• Year: 2013
• eBook ISBN: 9781135988388
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Throughout the western world public opinion has played an important role in shaping criminal justice policy. At the same time opinion polls repeatedly demonstrate that the public knows little about crime and justice, and holds negative views of the criminal justice system. This book, consisting of chapters from leading authorities in the field, is concerned to address this problem, and draws upon research in a number of different countries to address the issues arising from this state of affairs. Its main aims are:

• to explore the changing and evolving nature of public attitudes to sentencing
• to examine the factors that influence public opinion and to bring together recent international research which has demonstrated ways in which public attitudes can be changed
• to propose specific strategies to respond to the crisis in public confidence in criminal justice.

Chapter 1

Public attitudes to punishment:
the context

Julian V. Roberts and Mike Hough

The criminal justice systems of all western nations face a common problem: responding to public attitudes to punishment. Legislators, policy-makers, judges and other criminal justice professionals often cite public opinion when making and implementing policy (see Roberts et al., 2002). Although politicians may use opinion surveys to show that the public supports specific policies, little effort is invested in exploring the nature of public attitudes to punishment, and even less to improving the state of public knowledge in the area. Attempts to manage public opinion are often seen, but little effort is directed to informing or consulting the public in a rational way. The point of departure for this international collaboration is the recognition that in order to best respond to the views of the public, we need to understand the evolution of public opinion, the limitations of public knowledge, the limitations on various methods of sounding the views of the public, and the impediments to rational penal reform.

This book draws upon research that has accumulated over the past few decades in a number of jurisdictions, both common law and continental. The principal focus here is on attitudinal change. Readers interested in a more general discussion of public attitudes towards sentencing are directed to a number of published reviews (e.g. Hough and Roberts, 2002; Cullen, Fisher and Applegate, 2000; Kury and Ferdinand, 1999; Roberts and Stalans, 1997; Flanagan and Longmire, 1996; Roberts, 1992). The ambiguity in our title ‘Changing public views of punishment’ reflects our concern with the evolution of public attitudes towards punishment. It is clear that change has occurred over a long historical span. The public executions that were commonplace in the early nineteenth century represented mass entertainment as much as the ultimate expression of legal censure. Community sentiment slowly changed, with the last public execution in England taking place in 1848. More recently, we have witnessed a growing acceptance of alternatives to imprisonment. These punishments still fail to generate the same support from members of the public as imprisonment, and that is one of the issues addressed in this volume.

The second change to which we refer in our title involves the ways in which public opinion shifts – and can be shifted – in response to factors such as the amount (and nature) of information that is publicly available. Several contributing authors explore the changing nature of public opinion, and specifically the effects of providing information to the public. Much of the research in the field of public opinion has focused on the English-speaking world. In the present volume we have attempted to broaden the scope of inquiry to include continental Europe. While this represents an important step towards a truly international inquiry, we still need to explore these issues in other countries and other social contexts.

Surveys in which the public is asked to evaluate various criminal justice professionals routinely show that judges in western nations attract more negative ratings than any other profession (e.g. Hough and Roberts, 1998; Mattinson and Mirrlees-Black, 2000; Roberts, 2002). Much of the criticism of judges is based on the perception that they are out of touch with ‘what ordinary people believe’, which is shorthand for the view that they impose excessively lenient sentences. For example, the 1998 administration of the British Crime Survey found that almost half the sample (45 per cent) believed that judges were ‘very out of touch’ with what the ordinary person thinks (Hough and Roberts, 1998). Since there is no reason to believe that judges are doing a worse job than the police or members of the defence bar, we attribute this finding to the lack of awareness of the judicial function and lack of knowledge of the sentencing process, including sentencing patterns. Moreover, a number of analyses have demonstrated that people with the poorest knowledge of crime and justice also hold the most negative views of the justice system in general and sentencers in particular (Hough and Roberts, 1998).

Public opinion and political leadership

Public attitudes evolve naturally over time, as the literature on capital and corporal punishment has demonstrated.¹ However, we believe that politicians, policy-makers and indeed judges – when passing sentence – have a duty to lead public views, to inform people about the utility of certain sanctions and the disutility of others. This exercise of leadership should not degenerate into the delivery of propaganda, and we have attempted in our review of the literature to avoid studies or polls that manipulate the public (although a number of these exist). Our goal is to move towards a more informed public debate about the future of sentencing, not simply to undermine public support for imprisonment and to ‘sell’ community punishments to a sceptical public.

Clearly there is often a fine line between informing people – raising the level of debate – and browbeating or manipulating them. If there is to be a healthy political climate it is essential that those with the power to shape public attitudes remain on the right side of this line. At present, politicians from the mainstream political parties in late-industrialised societies do not command a great deal of public trust in the way they talk about social policy in general or penal policy in particular. Public sensitivity to political ‘spin’ is growing. Cynicism about politicians who place ‘spin’ on stories is a key factor underlying public disengagement from traditional politics. One of the reasons why politicians are viewed as unreliable sources of information about crime and justice is that the public see them as self-serving power-seekers. The credibility of academics could also be at risk – if the public regard the policies they advocate to be guided by ideology rather than evidence.

Crime and punishment are emotive issues. If public trust in the administration of justice is eroded further, there are risks to the political process itself. In several countries there have been signs recently that far-right (or simply extremist) political parties can successfully exploit public anger about crime to broaden their electoral appeal. To guard against these risks it is important to ensure that the public is accurately informed on these issues. There must be honesty and openness in any approach to improving public knowledge about the criminal process.

Responding to public opinion

Reality has not always matched these aspirations, of course. The recent history of penal policy in many developed countries, most notably the United States, has been marred by a form of penal populism in which tough talk on crime has been seen by politicians of all parties as a precondition to electoral success. Elsewhere we have traced how this process has distorted penal policy, imposing ineffective penal reforms at very high cost (Roberts et al., 2002). On occasion, this has resulted in the promulgation of policies the severity of which is inconsistent with public views. Much as one may decry this tendency, however, it would be equally wrong to suggest that penal politics should somehow be totally disconnected from public opinion. There needs to be some political and judicial response to public opinion, as Rod Morgan notes in the final chapter of this volume.

There is little question that public opinion is increasingly given more formal consideration in shaping sentencing policy. A good illustration can be found in the report of the Sentencing Review in England and Wales, published in 2001 (Home Office, 2001). That report placed the issue of public confidence at the forefront when it noted that ‘Sentencing, and the framework within which it operates, need to earn and merit public confidence’ (p. ii). The report also noted that its ‘assessment of public views on how sentencing should operate has informed its recommendations for a new [sentencing] framework’ (p. ii). In addition, the review conducted a major initiative with respect to exploring and changing public attitudes. Catriona Mirrlees-Black reports some of the findings of that research in the present volume.

Until fairly recently, public opinion with respect to sentencing has existed on two planes which seldom intersect. Criminal justice scholars, including many of the contributors to the present volume, have explored the nature and limits of public attitudes to sentencing. They have made distinctions between ‘top of the head’ and more reflective opinions. They have tried to reveal the dynamics of opinion formation. Policy-makers and politicians on the other hand, have too often embraced opinion polls as their own (and only) measure of public opinion. The nature of public knowledge is one issue that separates these two groups. Researchers have documented the limits on public knowledge, while politicians hardly ever acknowledge these limits or propose strategies to improve public understanding of crime and justice.

We do have an agenda in relation to penal policy, and it is worth making this explicit. We hope that this volume will help accelerate a movement towards the use of public opinion research in which attitudes to punishment (and other criminal justice issues) are measured after respondents have been given sufficient information about the issue at hand. In doing this, it is essential to ensure that the information is factual and balanced. There is no merit in changing attitudes to punishment by manipulating the public. Our aim is not to drift into an evaluation of different forms of propaganda; nor are we attempting to brainwash the public by offering a utopian rainbow of sentencing alternatives to the unremittingly aversive and pointless prison. We simply aim to explore public reaction to ways in which offenders can be held accountable without necessitating their exclusion from society. In our view, these alternatives must satisfy consensual principles of proportionality and equity in sentencing, and must not inflict further suffering on crime victims.

Two roadblocks impede progress towards a more humane (and less expensive) response to crime. One of these is the well-documented reluctance of criminal justice professionals and politicians to reduce the use of incarceration as a sanction. This is reflected in the fact that, notwithstanding the existence of many legislative reforms, prison populations are stable or rising in many western nations. As this volume goes to press in the summer of 2002, the prison population in England and Wales has reached record levels. The second problem is resistance to alternative sanctions on the part of judges and members of the public. The prison retains its primacy as a penal option in the minds of many people for whom alternatives carry insufficient penal ‘bite’ (see Petersilia, 1997; Marinos, 2000).

To a degree, this resistance reflects lack of awareness of the alternatives. This has been convincingly demonstrated by research in a number of jurisdictions. Research over many years by John Doble and his associates has revealed that people think first of prison as a punishment, but after being informed of the alternatives, demonstrate considerable flexibility. This research is summarised in a later chapter of this volume.

The hegemony of imprisonment

There are several reasons why members of the public associate crime with punishment, and punishment with prison. First, prison is simply the most familiar punishment in the public mind. Imprisonment has a unique public visibility as a result of its history. Second, the public is encouraged to make an association between punishment and prison by the news media, populist politicians and some advocacy groups. But there is a second, more fundamental reason for the association, and that involves a deep-seated attachment to punishment as a response to wrongdoing. Central to this response is the principle that punishments should be modulated by a sense of proportionality; that legal punishments, like punishments in everyday life, should reflect the seriousness of the conduct for which they are imposed.

The public is unlikely soon to abandon the notion of punishment (or proportionality). Restorative (non-punitive) responses carry considerable appeal for the public, particularly for young, and non-violent offenders. However, people remain sceptical about restorative responses to serious crime, particularly those involving violations of personal integrity. This is a generalisation, and quite possibly one that is becoming less true over time. Nevertheless, there remains, we believe, much scope to transform public conceptions of the form that punishment can take. The reflexive invocation of imprisonment can be replaced by more creative, non-carceral alternatives. If this happens, it will be of benefit to all parties, including crime victims.

Greater clarity needs to be brought to community penalties. In England and Wales for example, a confusing array of community punishments exists. The proposals of the 2001 Sentencing Review in England and Wales may help disperse some of the public confusion surrounding these penalties. In Canada, judges also have a large number of community-based penalties to consider at sentencing, and a number of complex rules determine the specific dispositions that may be combined (see Edgar, 1999). (For further discussion of the future of community penalties, see Bottoms, Gelsthorpe and Rex, 2001.)

There is also a great necessity to invest more resources in the supervision of offenders serving sentences in the community. The experience in a number of jurisdictions has been that inadequate supervision has led to a decline in judicial (and public) confidence in community punishments, and eventually a decline in the use of these sanctions. More intensive supervision would have several salutary effects. First, it would provide offenders with more assistance to help them desist from further offending. Second, it would help to ensure that non-compliance with conditions does not occur regularly or without response. An important weakness of community penalties in terms of public opinion is the perception that supervision is minimal and non-compliance widespread. Third, if more rigorous supervision existed, members of the judiciary would be more likely to sentence offenders to these sanctions, confident in the knowledge that the conditions imposed by the court would be observed.

A good illustration of the importance of establishing and maintaining judicial confidence in the adequacy of offender supervision can be found in Canada. In 1996, Parliament created a new, community-based sanction for judges to use at sentencing. The conditional sentence of imprisonment is effectively a term of imprisonment served in the community (see chapter by Roberts in this volume). The offender is subject to a number of conditions, and violations of these conditions can result in committal to custody. However, it has become clear to many criminal justice professionals, including judges, that supervision is minimal. For this reason, some judges have refused to impose conditional sentences unless and until adequate supervision or electronic monitoring is available.

The origins of this book

This book was conceived at a symposium held in London in December 2001. The symposium was funded by the Esmée Fairbairn Foundation as part of its Rethinking Crime and Punishment programme, a three-year strategic grant-making initiative which aims to raise the level of public debate about the use of prison and alternatives in the UK.² A number...

Table of contents

• Cover
• Halftitle
• Title
• Copyright
• Contents
• List of figures
• List of tables
• Acknowledgements
• About the authors
• Foreword
• 1 Public attitudes to punishment: the context
• 2 Measuring attitudes to sentencing
• 3 Public opinion and the nature of community penalties: international findings
• 4 Cross-national attitudes to punishment
• 5 The evolution of public attitudes to punishment in Western and Eastern Europe
• 6 Public and judicial attitudes to punishment in Switzerland
• 7 Public support for correctional rehabilitation in America: change or consistency?
• 8 Attitudes to punishment in the US – punitive and liberal opinions
• 9 How malleable are attitudes to crime and punishment? Findings from a British deliberative poll
• 10 Improving public knowledge about crime and punishment
• 11 Strategies for changing public attitudes to punishment
• 12 Privileging public attitudes to sentencing?
• Index