Confronting Crime

Crime control policy under new labour

Michael Tonry

• Publisher: Willan
• Year: 2013
• Print ISBN: 9781138878501
• eBook ISBN: 9781134028375
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

From Labour's promise to be 'tough on crime, tough on the causes of crime' through to the White Paper and new criminal justice legislation, controlling crime and reforming the criminal justice system has been one of the government's key priorities.

This book provides a detailed review of the thinking behind these new plans and legislation, looking at policies and proposals in the field of punishment, particularly those embodied in the Halliday Review of the Sentencing Framework (2001), the government White Paper Justice for All (2002), and the 2002 Criminal Justice Bill. The contributors to the book subject to scrutiny the evidence for the 'evidence-based policy making' that is often claimed as a distinctive new feature to these processes, examining approaches to drug-dependent offenders, dangerous sex offenders, nuisance offenders, procedural and evidential protections in the courts, sentencing guidelines, sentencing management, racism in sentencing, custody plus, custody minus, and reducing the prison population.

Chapter 1
Evidence, elections and ideology in the making of criminal justice policy

Michael Tonry

The Labour government has undertaken a root-and-branch remaking of the criminal justice system of England and Wales. This includes reorganising the criminal justice agencies, setting performance targets and goals, looking for ways to increase cost-effectiveness and efficiency, and altering the statutory framework in numerous ways.

Processes have been underway since 1999 that look toward fundamental changes in the ways criminal courts are organised and operate and in the ways convicted offenders are dealt with. Five major government documents serve as milestones. The first, The Way Forward (Home Office 2001a), is a Labour government policy document published just before the 2001 national elections. The second is the final report of the Home Office Review of the Sentencing Framework, Making Punishments Work (Home Office 2001b), commonly known as the Halliday Report after its director, John Halliday. The third is the report of the Review of the Criminal Courts, commonly called the Auld Report after its director, Sir Robin Auld (Auld 2001). The fourth is a government White Paper, Justice for All (Home Office 2002a), which set out policy proposals partly based on the Auld and Halliday reports. The fifth is the Criminal Justice Bill introduced into Parliament in November 2002. Because the emphasis in this book is mostly on policy proposals relating to the punishment of offenders, I devote greatest attention to the Halliday Report, the White Paper and the Criminal Justice Bill.

Part of the backdrop is the government’s expressed but schizophrenic commitment to ‘evidence-based policymaking’. The schizophrenia can be seen in sometimes startling contrasts between the government’s rationalistic claims to engage in evidence-based policy-making, and its determination always and on all issues to be seen as tough on crime. Many millions of pounds have been devoted to piloting and evaluating new criminal justice programmes in the name of evidence-based policy. Preoccupation with media imagery, however, has led to support for policies for which there is no significant evidence base – including mandatory minimum sentences, Neighbourhood Watch, ubiquitous CCTV, preventive detention and weakening of procedural protections against wrongful convictions – to knee-jerk responses to shocking incidents like the New Year’s Eve 2002 gun killings in Manchester and to rhetoric like this from the 2002 White Paper: ‘The people are sick and tired of a sentencing system that does not make sense’ (Home Office 2002a: 86).

Looking to see whether proposals are based on evidence is not the same thing as looking to see whether they are based on rigorously vetted findings from social science research or whether they accord with the policy preferences of academics. Academics have no special standing in these matters and systematic evidence can come from many places (Tonry and Green 2003). Not all systematic evidence comes from empirical research. Some comes from thoughtful analysis of official statistics. Much comes from professional experience and simple observation. The important question, however, is whether policymaking gives good-faith consideration to the credible systematic evidence that is available, or whether it disregards it entirely for reasons of ideology or political self-interest.

In section II below, I take the idea of ‘evidence-based policy’ seriously and ask what the evidence is and whether the major clusters of proposals in the White Paper and the Criminal Justice Bill take it into account. A number of proposals take the idea of evidence seriously. More do not. To lay a stage for that discussion, I canvass in section I reasons that have been offered for why criminal justice policies have become more repressive under the Labour government even than they were during the ‘Prison Works’ period of the last Conservative government of John Major.

I. Why?

The answer is that Parliament enacted tougher sentencing laws, Home Secretaries put those tougher laws into effect, magistrates and judges sent more people to prison and for longer times, the Parole Board became more risk averse and rates of recall and revocation increased, and the probation service shifted away from its traditional supervision and social service ethos to a surveillant and risk-management ethos. In other words, every component of the English criminal justice system became tougher.

In a sense, then, there is a simple explanation for the current prison population – things got tougher all along the line – but that begs, or merely rephrases, the question. Why did things get tougher all along the line?

England’s record and rising prison population is a remarkable phenomenon because it occurred during a period of generally declining crime rates and, except at the margins as yet, without the aid of mandatory minimum sentence laws, three-strikes laws, and truth in sentencing. Unlike in the United States, no plausible case can be made that a long-term increase in the imprisonment rate or enactment of tougher sentencing laws led to the decline in crime rates, and that continued increases or at least current levels are required to maintain momentum.

For a variety of reasons, the claim that US imprisonment increases caused crime rates to fall as much as they did is difficult to make (Harcourt 2001; Zimring et al 2001). The common-sense correlation is there though. It comports with most people’s intuitions about deterrence and incapacitation, and so it is not surprising that many people believed prison works. In England, however, the deterrence-and-incapacitation logic is harder to argue when crime rates began to fall before imprisonment rates began to rise. It’s also harder to countenance in England in 2002, when we know that crime rates have been falling in every Western country since the mid-1990s, irrespective of whether imprisonment rates have risen (England, the Netherlands, the US), fallen (Finland, Canada, Denmark) or held steady (Germany, Scotland, Sweden) (Tonry and Frase 2001; Tonry 2001). When crime rates in the US began to decline, by contrast, no one knew that crime rates would soon be falling almost everywhere, which made it possible to believe the declines were a uniquely US phenomenon that could be explained by reference to uniquely American developments.

Nor, conversely, can it plausibly be claimed that rising crime rates in England led to more convictions, which led to more prison sentences, which led to rising prison populations. Crime rates have been falling, which makes the English prison population trend even harder to explain. At least after a brief transition period, less crime should produce fewer convictions, fewer prison sentences and fewer prisoners. Other developments are more than offsetting the tendency of falling crime rates to lead to falling imprisonment rates.

Many explanations have been offered for why penal policies became increasingly severe in England and America. I’ll review the five major ones. The first, associated in England with Sir Anthony Bottoms and in America with David Garland, is postmodernist angst. The material and existential uncertainties of late modernity, Bottoms observed, have produced a public sensibility he famously labelled ‘populist punitiveness’ (1995). Garland, in his Culture of Control (2001), developed a similar argument though in more detail. Rising crime rates in the 1970s and 1980s combined with economic transformation, globalisation, personal insecurity, loss of confidence in the state and rapid social change to weaken support for welfare institutions, reduce sympathy for the disadvantaged and strengthen receptivity to easy answers. The major, and fatal, flaw of this argument is that essentially the same developments occurred in every Western country but harsh crime policies were adopted and prison populations leapt only in a few. Somehow, Scotland, Canada, Germany and all of Scandinavia escaped the penal policy influence of postmodernist angst.

A second explanation is racial. American penal policy trends are said by some to be the result of cynical and deliberate efforts (Edsall and Edsall 1991) or functional processes (Wacquant 2001) in which crime is a proxy for race and penal policy is a way to keep criminals (blacks) in their subordinate place. Whatever the power of those arguments in the United States, they can’t explain English developments. The Civil Rights Movement has not had a galvanising influence in England, none of the major parties is strongly dependent on Afro-Caribbean support as the US Democrats are on black voters, and even today Afro-Caribbeans make up less than 3 per cent of the English population. Race relations in England may be highly charged but over the long term, at least in relation to Afro-Caribbeans, they have not been a central or dispositive issue in partisan politics. And, in any event, most Western countries are as much or more troubled by ethnic tension as England is, and in every country some visible minority group is heavily over-represented in the crime, victimisation and imprisonment statistics (Tonry 1997). The racial hues of the crime problem can’t be the English answer.

A third, associated with David Garland (2001) and the American sociologist Jonathan Simon (e.g. Caplow and Simon 1999), relates to the weakness of the state. The arguments are somewhat different. Garland refers to the ‘crisis of the state’ and argues that the state can no longer meet many basic needs, including crime control, but must nonetheless be seen to be doing so. Policies aren’t really meant to work but to express solidarity with public anxiety and good values. Simon’s ‘Governing through Crime’ argument is that loss of confidence in the state’s power to do good, coupled with the influence in the United States of singleissue political groups, has required politicians to seek out symbolic issues which offend no one powerful on which to campaign. Issues like crime, welfare, immigration, and recently terrorism satisfy those criteria, and accordingly are the focus of political campaigns. Politicians cannot govern unless they are elected, and symbolic crime issues are what get people elected. Simon’s argument is too idiosyncratically American to have broad explanatory force but Garland’s, if right, should explain developments in all Western countries. It doesn’t, and there is no reason why it should uniquely do so in England.

A fourth is that public opinion willed current policies and politicians and public officials responded. This has some validity but not much. Certainly it is true that political figures, from Lord Bingham famously observing that the courts must respond to what he saw as public demands for harsher punishments to Michael Howard invoking public opinion to explain his Bulger case decisions and Jack Straw promoting ASBOs (anti-social behaviour orders), claim to be moved by the public will. There are two major problems with this. First, for as long as people have been surveying public opinion about crime and punishment, the same findings have recurred: crime rates are believed to be higher than they really are and sentences and judges to be too lenient; typical crimes are imagined to be the exceptional cases featured in the media rather than the mundane cases that clog the courts; the public does not understand how the system works (Walker and Hough 1988). There is nothing special about public opinion findings in the 1990s to explain why penal severity ratcheted upward then rather than earlier. The second problem, as shown in the US by sociologist Katherine Beckett (1997), is that close analyses of media content and public opinion survey results show that media and political preoccupation with crime generally precede rather than follow up ticks in public concern. Public opinion by itself can’t be the answer.

The fifth is political. Politicians for reasons of self-interest have cynically raised public concern about crime in order to offer proposals to assuage it and to win public favour by doing so. There is much evidence that conservative American politicians did this from the 1960s onwards, believing that most Democrats would oppose harsher policies and in a political shouting match would lose credibility with the electorate (Edsall and Edsall 1991). Public duels between emotional 30-second soundbites and lengthy assertions that things are more complicated than they appear are always won by the soundbiter. This is the standard account in England (Downes and Morgan 2002). From the late 1970s onwards, Tories were more inclined than Labour politicians to promote toughness, believing Labour would lose the soundbite duels. In the waning days of the Major government, the Tories are said in desperation to have tried to win public favour with a tough-on-crime platform. Labour, like Bill Clinton opposing Bob Dole in 1992, is said to have decided never to let the Right get to their right on crime issues. It worked politically in the sense that it checked the Tories but it failed substantively because it locked both parties into unreflective toughness. Jack Straw was as single-mindedly tough and worried about focus groups, the Daily Mail and political symbols as Michael Howard was, and David Blunkett, after waffling for a while, adopted the same posture.

That serial recital of arguments is no doubt oversimplified. All the things I described, and others, have influenced opinion and policy. Nonetheless, the bottom line is that current policies, political rhetoric and punishment patterns are as they are because politicians, however motivated, wished it so.

Looking on the bright side, that conclusion means that directions can change if politicians wish it so. Looking on the dark side, however, as the proposals in the White Paper and the Criminal Justice Bill testify, the Labour government shows no signs of wishing to return to policies that are more moderate, substantive, humane and effective than those it has promoted since taking office.

II. What?

In this section, I discuss seven bundles of proposals in the White Paper and the Criminal Justice Bill. They run a gamut from sensible and substantive through muddled and bound-to-fail to cynical and disingenuous. Proposals to strengthen the Crown Prosecution Service and rationalise the filing of criminal charges and to replace a congeries of inflexible community penalty statutes with a single community punishment order are in the first category. Proposals concerning sentencing guidelines and ‘custody-minus’ sentences cannot be reconciled with the idea of evidence-based policy-making. They are hopelessly muddled and bound to fail. Retention of mandatory minimum sentences and the fundamental weakening of procedural protections against wrongful convictions are cynical and disingenuous. Proposals for extended sentences for dangerous offenders are overbroad and over-inclusive and take insufficient cautionary account of the relevant evidence.

Charging

England and Wales came very late to the establishment of independent professional prosecutors and the Crown Prosecution Service is conspicuously weak as a result. It is often outgunned by private counsel in individual cases. Politically, its low credibility and lack of institutional authority mean that it is not an effective political counterweight to the views and preferences of the judiciary and that it has little voice in sentencing of individual cases.

Prosecutors in most other Western countries are forces to be reckoned with. In most European civil law countries, public prosecution has long been the task of high-status cadres of professionally trained, career civil servants who move back and forth between the judiciary and prosecution. A strong constitutional commitment in the United States to separation of powers gives prosecutors independent bases of political power and complete independence from the judicial branch of government.

In England and Wales, by contrast, there was no independent prosecution service until 1985. Charges were filed by the police and cases were prosecuted, depending on their complexity and political sensitivity, by police solicitors or publicly eng...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Notes on contributors
• Preface
• 1 Evidence, elections and ideology in the making of criminal justice policy
• 2 Drug-dependent offenders and Justice for All
• 3 Unprincipled sentencing? The policy approach to dangerous sex offenders
• 4 Nuisance offenders: scoping the public policy problems
• 5 Procedural and evidential protections in the English courts
• 6 Sentencing guidelines
• 7 Sentence management: a new role for the judiciary?
• 8 Is sentencing in England and Wales institutionally racist?
• 9 Custody plus, custody minus
• 10 Reducing the prison population
• 11 'Justice for All': A summary of Cambridge conference discussions
• Index