Community Penalties

Anthony Bottoms, Loraine Gelsthorpe, Sue Rex

• Publisher: Willan
• Year: 2013
• eBook ISBN: 9781135988661
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Community penalties are punishments that, in the courts' sentencing tariff, come between imprisonment and fines. They include electronic tagging, supervised unpaid work, and compulsory participation by offenders in treatment programmes.Recent years have seen many changes in England in the field of community penalties. These have included the rapid development of accredited offending behaviour programmes, and some new court orders such as the Referral Order for juveniles, based on the principles of restorative justice. Organisationally, too, the year 2001 sees a major change with the establishment of the National Probation Service for England and Wales. Community Penalties: change and challenges addresses the key issues facing community penalties at this critical time. Topics covered include the recent history of community penalties, partnership work, cognitive behavioural approaches to changing offenders' behaviour (and the need to look beyond these), compliance theory, accountability to the public and to the victim, accommodating difference and diversity in the delivery of community penalties, the use of technology in community penalties, and community penalties and issues of public safety. Community Penalties: change and challenges brings together many leading authors in this field. Together, they provide an authoritative review of a vital field of public policy.

Chapter 1

Introduction: the contemporary scene for community penalties

The Editors

Challenging times

The purpose of this book is to discuss possible future directions for ‘community penalties’. By these, we mean court-ordered punishments (following the terminology of the Criminal Justice Act 1991), structurally located between custody, on the one hand, and financial or nominal penalties (fines, compensation, discharge), on the other. What distinguishes community penalties from fines and compensation is that they are personally restrictive, involving some active contact with a penal agent; but, unlike custodial sanctions, this contact takes place in a community-based setting. It might take the form of active surveillance of the offender (as in electronic tagging), or participation by the offender in a programme of counselling or treatment (as in probation orders or drug treatment orders) or supervised work or other activities (as in community service orders or attendance centres).

The chapters in this book, and the originating papers and discussion at the Cropwood Conference (see the Preface), mark the fact that this is a particularly important moment for community penalties – and one at which it is especially appropriate to be discussing their possible futures. The reasons for this are multiple. The recent past has seen major transitions in the key rationales for community penalties, from the era of treatment, through periods of ‘alternatives to custody’ and ‘punishment in the community’, to a focus on the protection of the public, and culminating most recently in the introduction of what might be seen as a ‘new generation’ of community orders. These developments have not been confined to England and Wales; they, or some aspects of them, have had an impact in other western jurisdictions (see, for example, the popularity of desert-based sentencing principles and ‘the electronic tag’, in some north American and northern European jurisdictions).

The overall nature of community penalties has changed significantly over the past quarter of a century, and especially over the last decade. One striking aspect of that change has been a proliferation in the orders available to the courts. Until 1970, the only options in adult courts beyond custody, fines and discharges were the Probation Order and – in a few places – Attendance Centres. Between 1970 and 1990, the Community Service Order, probation with special conditions (requiring attendance at special activities or day centres) and the Suspended Sentence Supervision Order were added. The 1990s saw the introduction of the Combination Order; the Curfew Order with electronic monitoring; the Drug Treatment and Testing Order; and, for juveniles, the Action Plan Order and the Reparation Order (though the last of these is not technically a ‘community order’ within the terminology of the English legislation). Moreover, in the Criminal Justice and Court Services Act 2000, Parliament has now agreed to create two further community orders – the Exclusion Order and Drug Abstinence Order – as well as renaming some key existing orders (the Probation Order, Community Service Order and Combination Order will become respectively the Community Rehabilitation Order, the Community Punishment Order and the Community Punishment and Rehabilitation Order).

This expansion in the number and variety of community orders has been accompanied by the emergence of a more ‘scientific’ approach in their actual delivery. The use of technology, in both the assessment and the supervision of offenders, seems certain to become even more firmly embedded in supervisory practices. The last decade has seen a significant advance in research-based understandings about the types of programmes with offenders that offer most in reducing their future offending. Some of this research has strongly influenced probation practice, under the so-called ‘What Works’ initiative co-ordinated by the Home Office and HM Probation Inspectorate.

Yet, despite these positive developments, and the willingness shown by the government (for example, in the Comprehensive Spending Review 2000) to invest in community penalties, there has been an upward trend in the use of custody since 1993 (for example, among males aged 21 and over convicted of indictable offences, the proportion sentenced to immediate imprisonment rose from 18 per cent in 1993 to 28 per cent in 1999). This is financially expensive, but successive governments – clearly acting on perceptions of public opinion – have been willing to find the necessary resources. Reliance on custody has been prompted – at least partly – by doubts in politicians’ and the public’s mind about the capacity of community penalties to deliver public protection (or, indeed, punishment). Such doubts have also brought about increased emphasis on the enforcement of community penalties, evidenced for example in the tightening up of arrangements for enforcement in the revised National Standards on Community Supervision (Home Office 2000), and through provisions in the Criminal Justice and Court Services Act 2000 (s.53) which make imprisonment the anticipated standard penalty for a second unjustifiable breach of a requirement of a community order.

This is all at a time of important transformations in the policy and organisational framework for community penalties. Following publication of the Consultation Paper ‘Joining Forces to Protect the Public’ (Home Office 1998), the government has produced the Correctional Policy Framework (Home Office 1999), for the first time setting out a common policy framework for the work of the two principal services whose task is to provide public protection and to reduce re-offending in respect of identified offenders (i.e. the probation and prison services). The Criminal Justice and Court Services Act 2000 also provides for the establishment of a National Probation Service for England and Wales; at the time of writing the necessary arrangements are being put in place for the creation of a national directorate, and the amalgamation of local probation services to form 42 probation areas coterminous with police force area boundaries.

Against the backdrop of all this change, these are clearly important and challenging times, and we hope that the chapters in this book will stimulate reflection and debate about how community penalties might be developed in the future to rise to those challenges. But, first, this introductory chapter sets the context by summarising the key developments that have impinged on community penalties over the last 25 years. Having sketched the relevant background features, it then seeks to describe the contemporary scene against which participants at the Cropwood Conference were discussing possible future directions for community penalties, and which has informed the preparation of this book.

The 1980s: from providing ‘alternatives to custody’ to offering ‘punishment in the community’

The ‘alternatives to custody’ approach arose in the 1960s and 1970s from a combination of an empirical crisis surrounding the effectiveness of rehabilitative treatment (closely associated with Martinson 1974, and the now notorious phrase ‘Nothing Works’); a resources crisis surrounding the sharp rise in the prison population since the 1950s; and a theoretical crisis arising from alleged injustices resulting from the wide discretion often vouchsafed to treatment agents (Bottoms 1980). Now that rehabilitation had, it seemed, been thoroughly discredited, the key aim of the diversion from custody movement was to offer judges and magistrates options that might avoid the damage and expense of a custodial sentence. The first real manifestation of this approach (in the Criminal Justice Act 1967) was, in fact, to provide for a sentence of imprisonment to be suspended. This was followed soon afterwards by the introduction of a new ‘intermediate’ sanction, the community service order, in the Criminal Justice Act 1972. A certain amount of confusion was undoubtedly created by the fact that the community service order lacked the explicit status of an ‘alternative to custody’ that the statutory framework had conferred upon the suspended sentence.

In the event, research suggested that both suspended sentences and community service orders replaced terms of imprisonment only in about half the cases in which they were imposed (see Bottoms 1981; Pease 1985). It was widely accepted that such ‘alternatives’ led to ‘net widening’ and ‘mesh thinning’ (Cohen 1985) – that is, the bringing of more and less serious offenders into the penal net than might otherwise have been the case, and the imposition upon them of more severe sanctions (though for an alternative view see McMahon 1990). Whether or not that was so, ‘alternatives to custody’ clearly failed to have the desired impact on the prison population, which continued an upward trend (see Bottoms 1987). The government realised that a rethink was necessary: judges and magistrates had to be offered sanctions that were more credible if they were to be persuaded to make less use of custody. To provide a new rationale for community-based sanctions, the government turned to the ‘justice model’, whose popularity in North America had been prompted by the ideological doubts over the excesses and injustices that had contributed to the downfall of ‘treatment’.

Specifically, the government applied the ‘desert’ model particularly championed by Andrew von Hirsch (see von Hirsch 1993 for a full account). This formed the central plank in the legislative framework for sentencing in the Criminal Justice Act 1991, which sought to apply desert-based principles to the re-named community orders, as well as to custodial sentences. In order to bring community orders within its overall philosophy of proportionality, the 1991 Act defined these personally intrusive measures in terms of restrictions on liberty that should be commensurate with the gravity of the offence, within an overall philosophy of ‘punishment in the community’.

The 1991 Act thus enacted a significant departure from the penal-welfare concepts that had predominated in the era of treatment (see Garland 1985) by making the probation order (the archetypal penal-welfare measure) a sentence of the court – a marriage of opposites that was not very successful in practice (see Rex 1998). It also created two new orders, the combination order and the curfew order, intended to be sufficiently credible in terms of their restrictions on liberty to offer ‘punishment in the community’ for offenders who might otherwise receive a custodial sentence.

Initially successful in reducing reliance on imprisonment, since 1993 the desert framework in the 1991 Act has become increasingly sidelined by growing concerns with public protection and the reduction of risk (Rex 1998). It now remains formally on the statute book, but seems to have only a limited impact on sentencing, and the Home Office’s current review of the legal framework for sentencing is likely to lead to its reform (see: http://www.homeoffice.gov.uk/cpd/sou/srfleaft.pdf).

The 1990s: a focus on public protection – the new generation of community orders

The dominant features of community penalties have changed significantly in the decade since the passage of the 1991 Act. The emphasis on punishment in the community remains, and has intensified, marked by the heightened concerns with enforcement evident in the new National Standards for the Probation Service (see above).¹ Perhaps allied to this, there has been a growing reliance on the use of technology to enforce the requirements of community orders, apparent both in electronic monitoring in relation to curfew orders and in the new Drug Treatment and Testing Order (created by the Crime and Disorder Act 1998, and piloted locally before its national introduction in 2001). The Criminal Justice and Court Services Act 2000 widens these provisions by enacting new and more general powers relating to electronic monitoring and drug testing in relation to the making and the enforcement of community sentences (ss. 48–52).

Another important trend, exemplified by National Standards, has been a ‘management revolution’ in the Probation Service. This started in the mid-1980s with the issue of the Statement of National Objectives and Priorities by the Home Office in 1984, and has since gathered pace, with the use of key performance indicators to measure performance by outcomes, and three-year plans for the Probation Service. Managerialism has also been embraced by probation managers as a means of helping them to exercise better control and leadership of ‘effective practice’ developments in their local services. It has perhaps reached its logical conclusion in the formulation of the Correctional Policy Framework and the establishment of the National Probation Service.

One of the most dramatic changes since the 1980s has been the emphasis on effectiveness, prompted by the revival in the research literature of the idea that some interventions are more effective than others in preventing recidivism (see further below). The simultaneous development of systems (utilising IT) which enable probation services to calculate risk scores, and more recently risk-need scores, has led to a focus on managing and minimising ‘risk’ in supervising offenders in the community.

A triple concern with punishment, effectiveness and public safety seems to have contributed to a trend towards the ‘creative mixing’ of different kinds of interventions in offenders’ lives (rather than imposing a single type of punishment or treatment). This has been seen, for example, in the enactment and popularity of the combination order, bringing together the requirements to keep in touch with a probation officer and to perform unpaid work. There have also been other important ‘mixing’ proposals, such as those of the former Conservative administration in its 1995 Green Paper ‘Strengthening Punishment in the Community’ (Home Office 1995). Such mixing has perhaps – at least in embryonic form – been taken even further by the current Labour administration in its ideas for the so-called ‘seamless sentence’ containing elements of both custody and community supervision.

One section of the public towards whom a greater sense of accountability has developed recently comprises people who have been victims of crime. A considerable growth in ‘victims’ movements’ has found expression, in the case of community penalties, in an increased interest in direct reparation to the victim and in the adoption of approaches inspired by restorative justice models in Australia, New Zealand and Canada. In England, these developments have been taken furthest in relation to young offenders, recent initiatives in relation to whom are discussed below.

The ‘What Works’ initiative

Perhaps the current development that has had the greatest impact on probation practice, and which incorporates a number of the strands outlined above (notably, managerialism, technological innovation and the management of risk), has been the emphasis on effective practice. The Effective Practice Initiative, launched in 1998 by the Home Office and HM Probation Inspectorate in conjunction with the main probation organisations, has firmly reinstated rehabilitation ...

Table of contents

• Cover
• Halftitle
• Title
• Copyright
• Contents
• List of figures
• Notes on contributors
• Preface
• 1 Introduction: the contemporary scene for community penalties
• 2 Community penalties in historical perspective
• 3 Community penalties in the context of contemporary social change
• 4 Beyond cognitive-behaviouralism? Reflections on the effectiveness literature
• 5 Compliance and community penalties
• 6 Making ‘What Works’ work: challenges in the delivery of community penalties
• 7 Accountability in the delivery of community penalties: to whom, for what, and why?
• 8 Accountability: difference and diversity in the delivery of community penalties
• 9 Technology and the future of community penalties
• 10 Community penalties and social integration: ‘community’ as solution and as problem
• 11 What future for ‘public safety’ and ‘restorative justice’ in a system of community penalties?
• 12 Concluding reflections
• Appendix: Key conclusions
• Index