Probation Practice and the New Penology

Practitioner Reflections

John Deering

• Publisher: Routledge
• Year: 2016
• eBook ISBN: 9781317075547
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

The criminal justice system has been in a state of flux in recent decades, accompanied by growing levels of insecurity and intolerance of crime and offenders among the general population. Along with government policy and practice, these developments are seen as contributing to an increasingly punitive system that imprisons more than ever before and seeks to punish and manage offenders in the community, rather than to attempt their rehabilitation. For these reasons, along with a loss of faith in rehabilitation, the probation service is now described by many as having become a law enforcement agency, charged by government with the assessment and management of risk, the protection of the public and the management and punishment of offenders, rather than their transformation into pro-social citizens. This book explores the extent to which practitioners within the National Probation Service for England and Wales and the National Offender Management Service ascribe to the values, attitudes and beliefs associated with these macro and mezzo level changes and how much their practice has changed accordingly. By viewing examples of 'real' practice through the lens of the modernisation of public services, managerialism and theories of organisation change, the book considers how 'real' practice is likely to emerge as something unpredictable and perhaps different from the intentions of both government/management and practitioners.

Chapter 1
Introduction

Since 1907 and its legal inception, the probation service and probation practice has been in a state of change. Some of this has been changes to practice driven by a curiosity amongst practitioners about how to develop more effective ways to help reduce re-offending by and promote the rehabilitation of people who have committed offences. This has been in the main via trying to assist individuals address and overcome a range of personal and structural issues and problems that have been seen as being at the root of their offending, as well as addressing antisocial attitudes and behaviour. This ‘help’ has, it is argued here, been generally offered in a humanistic manner, but has usually been with the ultimate aim of reducing re-offending and not simply for its own sake.

However, changes that have taken place in recent decades have been, in the main, driven by government and management and been about trying to change both the ethos and working practices of the service in rather different directions. Famously, until the Criminal Justice Act (CJA) 1991, probation officers were required to ‘advise, assist and befriend’ those subject to probation, which was itself not a sentence, but an alternative and an opportunity to reform. However, the 1991 Act made the probation order a sentence and a means by which the service was supposed to deliver ‘punishment in the community’. Since then, both Conservative and New Labour governments have sought to toughen up the service and to move it away from ‘help’ and rehabilitation, to punishment, offender management and the protection of the public via the assessment and management of risk, although it is also the case that a reduced commitment to rehabilitation has been retained. Some of this has involved the downplaying of the importance of the individual relationship and the ‘therapeutic’ process that it was intended to engender and the promotion of offender management with interventions delivered to address the ‘behaviour, rather than the person’ as well as some assistance with problems such as drug misuse, unemployment, accommodation etc. Throughout the 1990s and into the new century, these interventions were backed up by a toughening enforcement regime that aimed to ensure that if an individual did not take advantage of the service offered then punitive sanctions would follow. One of the other phenomena of recent decades has been managerialism, which has pervaded the public sector generally. In probation, it has sought to influence and control practitioner behaviour via National Standards, monitoring and audit towards these new aims for the service. However, it has perhaps not been clear to what extent these initiatives have been successful in terms of the transformation of the attitudes and actual practices of probation practitioners and it is these areas upon which this book attempts to throw some light.

One of the premises behind the study on which this book is based is that there may be a gap between the ‘official’ accounts of practice from government and management and the carrying out of ‘real practice’ by practitioners, still in the main ‘behind closed doors’ and away from immediate scrutiny and audit. Therefore the focus of what follows is the attitudes, values, beliefs and practices of probation officers (POs), probation service officers (PSOs) and trainee probation officers (TPOs) and how they believe probation practice should be operating within the overall National Offender Management Service (NOMS). These phenomena are examined in the light of the apparent changing role of probation practitioners, as outlined and defined by government, via the Home Office (later the Ministry of Justice), the National Probation Directorate (NPD, which was later subsumed into NOMS) and both senior and middle management. The context within which practice occurs and develops is the wider criminal justice system and the contention here is that political discourse and debate about crime and punishment and the workings and outcomes of the criminal justice system have seen risk assessment, offender management and punishment emerge as dominant penological aims in recent decades. The range of macro and mezzo level theories about such changes are present in the writings of Foucault (1979), Cohen (1985), Feeley and Simon (1992), Garland (2001) Simon (2007) and others.

This book is based on an empirical study carried out in 2005 and 2006 which investigated how these developments influenced policy and practice at strategic, management and practitioner levels, though concentrating principally on the responses of practitioners. The latter were investigated in terms of the extent to which the their attitudes, beliefs and values coincided with those promoted by government and management and how these affected their actual practice with the individuals with whom they came into contact professionally, either to conduct pre-sentence assessments or as a result of community sentences or post-custody supervision.

The three broad research questions which the study sought to answer and which the book addresses are:

1. In what ways have the practice, values, beliefs and attitudes of practitioners changed in the light of broad changes apparent in western society in late modernity, in the wider criminal justice system and in the NPS and NOMS?

2. To what extent do such changes conform to those intended by government?

3. How are changes manifested in the three areas of practice: the supervision of offenders, the enforcement of community orders and post-custody licences and the assessment of offenders?

The originality of the study (and hopefully the book) lies in the insights gained through unusually open access to practitioners and managers and to case records and files. Its importance and relevance is both general and specific. In general, it investigates the extent to which public sector practitioners who regard themselves as professionals accept or reject significant changes to their working practices imposed upon them by government. Any number of outcomes is possible on a continuum which ranges between complete acceptance and implementation to complete rejection and active subversion. More specifically, when considering the practice of individuals, the study throws light upon the extent to which the supervision and treatment of offenders is reliant on individual discretion and judgement, rather than the collective enforcement of nationally agreed procedures and rules.

The theoretical background of the study places the practice of the service firmly within changes in western society consistent with theories of late modernity (Bottoms 1995, Garland 2001a, Giddens 1998, Pratt 2002, Rose 2000) which chart an increasing social and political dislocation within the western industrialised world that has resulted in increased insecurity and fear of crime, intolerance of offenders, an increasing preoccupation with risk management and the ‘protection of the public’ and unprecedented levels of imprisonment. At the same time, other arguments are acknowledged that this is neither manifest across the whole of the western world, nor regarded as a determinist process (McAra 2005, Tonry 2003, Cheliotis 2006).

The Original Study

In the main the book is based upon a qualitative research approach, utilising data obtained from semi-structured interviews and two focus groups. Semi-structured interviewing was used due to its flexibility which allowed respondents to develop ideas and themes in their thinking. Two focus groups, one from practitioners previously interviewed and one of practitioners who had not been previous respondents debated themes that had emerged from individual interviews in order to throw light on whether those themes approximated to a reality of practice or to an idealised version.

Regarding quantitative methods, the use of Likert scales was employed to gain insight into attitudes around specific issues and to compare them to views expressed in interviews, as the topics covered mirrored those within the qualitative process. Finally, documentary data was also considered, in the form of Pre-Sentence Reports (PSRs) and case records, taken from the service’s computer based record system known as Crams.

Interviews were conducted in three probation offices, from two different probation areas. There were a total of 51 interviews – of these 43 were with practitioners, either PSOs or POs, five were with middle managers and three were with senior managers. In each of the three offices a reasonably high percentage (85 per cent) of practitioners within the three areas of practice considered were interviewed: the supervision of ‘high risk of harm’ cases; the supervision of ‘low-medium risk of harm cases’; the assessment of individuals. Participation was voluntary and whilst this was clearly necessary on ethical and practical grounds, it is also the case that respondents constituted a self-selecting group, made up of individuals prepared to give their views about the service.

The limitations of this piece of work relate mainly to one of its initial principal aims: to discover the reality of probation practice in the early years of the 21st century and to ascertain whether and it what ways it differed from practice that occurred previously. The problems are twofold. First, due to an inability to observe live interviews, the study relied on practitioners’ accounts being more than rhetoric or an idealised version. Secondly, it was only possible to establish a baseline of practice from other literature on the subject of the practice of individual practitioners. In order to address the first of these issues, respondents were asked to give concrete examples of their practice and part of the purpose of the focus groups and the reading of case records and PSRs was to try and bring some level of challenge and confirmation or refutation of the views expressed in interview. Despite this, it is acknowledged that the ‘window’ on practice produced here is subject to limitations and thus might be better regarded as reflections on practice.

In the end, what is produced is a ‘snapshot’ of practice that is compared to earlier practice that was itself inferred from literature and government policy statements and documents. The other major issue is the generalisability of results that are drawn from a relatively small number of respondents in two probation areas. Of course, this is an issue for all forms of qualitative research but a qualitative approach may be seen as superior to a more quantitative one based upon a larger sample when the intention is to try and draw out the subtleties and nuances of practice and the attitudes and values of practitioners.

Brief Historical Background and Overview

Established by the Probation of Offenders Act 1907, the probation order was an alternative to a formal sentence of the court and probation officers were required to ‘advise, assist and befriend’ those they worked with on behalf of the court. Until the so-called ‘nothing works’ era of the 1970s and 1980s (e.g. McGuire 2001) the NPS had, both ‘officially’ at government and senior management level and ‘unofficially’ at practitioner level, pursued a rehabilitative ideal. From that time until the present, government aims and objectives for the service have become a complex combination of the pursuit of cost-effective crime management, the emergence of the risk management and public protection agendas, the provision of alternatives to custody via ‘punishment in the community’ and what has been called the ‘new rehabilitation’, influenced by the emergence of ‘what works’ (Kemshall 2003, Newburn 2003, Vanstone 2004a). At the same time, it is unclear whether practitioners have accepted and worked with these changes or have continued to work within a more traditional model of rehabilitation.

Until April 2001, the probation service consisted of 54 services each, in theory managed by committees of local magistrates. Whilst 80 per cent funded by the Home Office (20 per cent coming from local government) they were largely independent of central government in terms of their policies and practices.

However, in April 2001, the NPS was created, with a central directorate and 42 local areas, under the control of the centre. One of the reasons for the creation of the NPS was the view held by both Conservative and New Labour governments that the old probation service had been too independent, ‘soft on offenders’, unwilling to enforce court orders by ‘breaching’ those who failed to comply and generally reluctant to move away from the long-established notion of ‘advise, assist and befriend’ (Newburn 2003). In short, the service was regarded as ‘failing’ and needed to be brought under central government control. This process of centralisation may also be regarded as occurring across the public sector and in place since the late 1970s, although it may be seen as involving ‘steering rather than rowing’, i.e. operating ‘at a distance’ rather than via direct local management. These changes can be regarded as part of the realignment of the centralised state in late-modernity and the ‘new public management’ (NPM - Flynn 2002b, Garland 2001a). The creation and development of NOMS from 2004 is of particular significance owing to its intended role as commissioner of services currently provided by the prison and probation services, but under a proposed system of ‘contestability’. This would allow such services to also be provided by the private or voluntary sectors and although NOMS has been through many changes in its short history, contestability remains and there still exits (in mid 2010) a situation which may eventually lead to the break-up and privatisation of the probation service. After several administrative versions of NOMS, it was finally legally created in 2007 and on 1 April 2010, the 42 previously existing probation areas and trusts were reduced to 35 trusts, each under a chief executive (rather than a chief officer). These trusts now have to be commissioned by the Directors of Offender Management (DOM) in England and Wales to provide what might be referred to as ‘probation services’. In due course, these could theoretically be provided by any organisation, be it private, third sector or another trust.

The CJA 1991 had the stated intention of reducing the overall prison population, but also that those committing violent and sexual offences should be dealt with more severely, on the grounds of ‘protecting the public’. Clearly, one of these aims has failed: an initial fall in the prison population following the introduction of the Act in October 1992 was followed by a steady increase throughout the 1990s and into the 21st century. In 1992, the prison population stood at some 40,000, whilst by January 2010, it was in excess of 84,000, with provisions enacted in the CJA 2003 being estimated as likely to increase that figure to 100,000 in due course. Even the Carter Report (‘Managing Offenders – Reducing Crime’) made public in January 2004 and accepted by government, whilst stating that the steady and continuing increase in the use of custody is undesirable and not ‘justified’ by increases in crime, sought to limit the increases implied by the CJA 2003, rather than reduce the overall figure (Carter 2003).

These increases in the use of custody have occurred without any significant increase in crime levels, overall prosecution, or changes in the pattern of offence types coming before the courts, something acknowledged by Carter. During this period, there has also been a significant increase in the use of community sentences, but a drop in the use of discharges and fines. The entire sentencing practices of the courts (both magistrates and crown) have changed to produce an ‘up-tariffing’ of the offending population, so that many of those who would have been fined or discharged 10 years ago now receive community sentences and many of those who would have received community sentences are now imprisoned (Carter 2003).

Since the early 1990s, the emergence of the ‘what works’ movement (e.g. McGuire 2001) held out the possibility of effective community sentences (i.e. those that had a demonstrable positive effect upon rates of re-offending). However, whilst the New Labour governments after 1997 invested heavily in community sentences, this investment was accompanied by the ‘toughening up’ of probation practice. Reflecting a change in the ‘official language’ whereby those previously referred to as ‘clients’, ‘probationers’ or ‘service users’ are invariably referred to as ‘offenders’, this agenda has seen more formalised and rigid enforcement of community sentences and licences. This was accompanied by rhetoric that became increasingly tough, with the ‘need’ to imprison more offenders and for longer being increasingly to the fore. The then Prime Minister, Tony Blair led this trend, talking in June 2006 of the need to make the criminal justice system tougher, in favour of victims and ‘against’ offenders (Travis 2006). With the election of a new Conservation/Liberal Democrat coalition government in May 2010, future policy in this area is unknown.

It is argued here that the immediate reasons for changes to the criminal justice system and hence probation are a complex interplay between the attitudes of the courts and the populist ‘law and order’ policies pursued by successive governments. It is acknowledged, however, that the picture is not one of simple punitive populism. Intertwined with this are the growth of managerialism, the rise of the ‘risk society’ and the emergence of the ‘new rehabilitation’ which is based upon cognitive-behaviourist techniques. Such developments are often explained in terms of fundamental changes in late- and post-modern industrial society, which emphasise western society’s increasing dislocation and feelings of insecurity. When combined with increases in crime rates between the 1960s and 1990s, this has resulted in a greater degree of intolerance and fear of crime and offenders. ‘Offenders’ have become, at least in the popular media, an easily identifiable group of ‘others’, who can be demonised and treated more harshly as not ‘one of us’ and indeed who threaten ‘our’ safety and security. However, whilst these macro level arguments and movements are acknowledged, it is also important to recognise that these are not determinist forces and that ultimately policies are actively made by governments and sentences are actively passed by courts.

It is accepted that notions of ‘punishment’ are the subjects of disagreement and debate. However, for the most part, this study regards ‘punishment’ as a penological aim that has risen to the fore as government policy. This contrasts with the notion of ‘rehabilitation’ which was regarded in the main as the prime penological goal during much of the 20th century, as exemplified by Garland’s concept of ‘penal welfarism’ (2001a). Of course, the situation is considerably more complex than this and apparently contradictory principles are often espoused simultaneously. For example, the government set out the aims of the NPS in 2001 as: the proper punishment of offenders; the protection of the public; the reduction of re-offending; ensuring offenders are made aware of their actions on victims; the rehabilitation of offenders (rehabilitation being placed as last of these five aims).

Within these debates and policy developments, the work of practitioners has continued. It has increased greatly in overall volume, but many of the core tasks have remained, e.g. the preparation of court reports and the supervision of offenders. However, due in part to increases in workloads and a shortage of qualified probation officers, much of this work was being done by unqualified grades over a period of years and during the completion of the fieldwork (although the new 2009 Qualifications Framework for the service will see these grades qualified via a Vocational Qualification 3 and a foundation degree in due course) with probation officers moving to work more with ‘high risk of harm’ offenders. These trends look set to continue, although, as mentioned, the service’s very existence may appear to be in doubt with the creation of independent trusts, potentially in competition with each other.

What follows looks at how (or if) the wider changes to official policy and practices have affected day-to-day practice. It further considers the extent to which practitioners have ‘bought in’ to government rhetoric and policy and whether the views of government, managers and practitioners coincide. A further variable considered is that of probation officer training and whether there are discernible differences in practice and attitudes between practitioners trained under the different training arrangements. In other words, has the government sought to create and co-opt a new breed of practitioner to achieve its aims?

Structure of the Book

Chapters 2 and 3 review in more detail the literature around broad changes to wider society in terms of increasing insecurity and fear of crime and criminals and to the criminal justice system as it pertains to the probation service. The following chapter examines the attitudes, values and beliefs of primarily practitioners, but also trainees and middle managers, towards various aspects of the work and purposes of the service. There then follow three chapters that examine practice in the area of offender assessment, the enforcement of community orders and post-custody licences and supervision. The final two chapters summarise findings, relating them to the literature discussed and draw some final conclusions, as well as considering some of the more recent developments in the service that have occurred since the completion of the fieldwork. Finally issues that might influence the future of the service and NOMS are considered.

Chapter 2
Late Modernity, the New Penality, Managerialism and the Culture of Organisations

This chapter discusses changes in attitudes towards and use of punishment and ‘punitiveness’ (i.e. the rise of the ‘new penality’); the rise of risk in western societies and its assessment and management; the emergence of ‘managerialism’, the ‘new public management’ and ‘modernisation’; and finally the culture of organisations and change. Chapter 3 looks in more concrete fashion at changes in the criminal justice system and in probation in ...

Table of contents

• Cover
• Dedication
• Title Page
• Copyright Page
• Table of Contents
• List of Tables
• Acknowledgements
• List of Abbreviations
• 1 Introduction
• 2 Late Modernity, the New Penality, Managerialism and the Culture of Organisations
• 3 The Development of Penal and Correctional Policy and its Impact on Probation Practices and Culture
• 4 Attitudes, Values and Beliefs in the Probation Service
• 5 Reflections on Practice 1: The Assessment of Offenders
• 6 Reflections on Practice 2: The Enforcement of Community Orders and Post Custody Licences
• 7 Reflections on Practice 3: Case Management and the Supervision of Offenders
• 8 Probation Practice in the Early 21st Century?
• 9 Probation and the New Penality: Conclusions and Looking Forward
• Bibliography
• Index