Social sentencing
While waiting for This Week to start, I channel-hopped my way to the ‘highlights’ of a Lords debate on BBC Parliament. (I told you Brighton, my home town, was notorious for partying.) The focus of the debate was Law and the Big Society: something that resonated with the recent talk given at the RSA by the excellent Larry Sherman, and with my own interests in restorative justice (I helped to establish New Cross Gate in South London as a ‘restorative community’ some years ago).
The debate was wide ranging, covering the representativeness of the magistracy (improving, but still poor); court administration (too slow, and with uneven access to and use of technology); and public faith in the justice system (variable). Much of the debate, however, focused on the relationships between community and the criminal justice system and the purpose of sentencing. Broadly, what is the relationship between the law and the idea of the Big Society?
Several of the contributors pointed to the magistracy, celebrating its 650th anniversary this year, as perhaps the first example of the kind of voluntarism and localism that is at the heart of the notion of the Big Society. But how can the magistracy (and other local administrations of justice such as restorative approaches and the forthcoming neighbourhood resolution panels), contribute more to the development of the Big Society, particularly given the public scepticism around community-based sentences?
Lord Patel, admitting his lack of enthusiasm for and understanding of the term ‘Big Society’, saw it is a model of social inclusion, but he focused only on inclusion within the magistracy and the need for the administration of justice to be delivered by and reflect all constituencies within a community.
Lord Thomas built on this theme, remarking that order is preserved in a community not by the police, but by the people. He pointed to work done by the Centre for Criminology at Oxford (with whom the RSA is researching co-production in recovery from substance misuse), which points to co-production as the central principle of the Big Society. According to the work, communities have very little engagement with the courts and “live in two separate worlds”. On the one hand, communities were disappointed with the level of engagement from magistrates, while on the other, magistrates worried about their judicial independence in building strong relationships with community stakeholders. The research concluded that courts have yet to embed principles of community justice, seeing their role as “adjudicators of fact and meters out of punishment and no more”.
If the law and the Big Society are to be mutually reinforcing, “community engagement and problem solving in partnership with community groups and agencies should become a formal, standardised part of a magistrate’s training and part of continuing professional development for existing district judges and magistrates”.
Baroness Seccombe argued that the Big Society means ”bringing decision-making back to communities so that local people have a real stake in running their own lives and supporting those who need a helping hand so that they can improve their lives. It means giving people the opportunity to bring colour and happiness to others less fortunate than themselves, while at the same time experiencing the genuine pleasure that can be had from joining a group of people who get things done, so contributing to a thriving community. The Big Society is where we can all help each other as we try to do our bit to promote local well-being.”
If the law is to be in part a driver of the Big Society, what scope is there for the criminal justice system to foster group collaboration, the inclusion of marginalised people, and thriving communities?
Community sentencing seems an obvious first place to look. Community sentences often include ‘community payback’, which focuses on unpaid work such as removing graffiti, clearing public areas/wasteland, or decorating public places and buildings such as local community centres. Such sentences have undergone changes in recent years: the renaming from community service to payback emphasises the focus on punishment, and the enforced wearing of high-visibility jacket emblazoned with ‘Community Payback’ aims to improve public confidence in community sentences and increase deterrent and shaming effects.
Are we missing a trick to make sentencing more socially productive?
But are we missing a trick to make sentencing more socially productive? In visibly marking offenders as ‘other’ and by focusing on payback activities that mean offenders work in isolation (either individually or only with other offenders), are we limiting the rehabilitative potential of such sentences? The RSA’s Connected Communities programme has explored the ways in which our relationships influence our attitudes, behaviours and opportunities. Our work on recovery from substance misuse, for example, shows how those who use drugs problematically are caught in social networks in which most, or in many cases all, of the people they know and/or receive support from are other drug users.
Given this kind of example, can we use sentencing to widen the constructive social connections of offenders and provide the possibility of more positive social influence? Rather than separating off offenders, can they undertake ‘payback’ that is equally demanding and useful, but that requires interaction with the parts of their communities from which they are removed?
‘Social sentences’ speak to restorative models of justice, and encourage ‘reparation’ agreements that tap into victims’ desire for wrongdoers to make amends in meaningful ways
Such ‘social sentences’ speak to restorative models of justice, and encourage ‘reparation’ agreements that tap into victims’ desire for wrongdoers to make amends in meaningful ways. Examples might include helping to organise and put on community events, working on specific tasks for voluntary groups, assisting with community organising, helping with consultations and so on. Such examples might be particularly effective where sentences involve a relatively high number of hours work that enable sustained interaction and influence.
Norwegian criminologist Nils Christie argued some 35 years ago that conflicts belong to the people that are involved in them and that in transferring ownership of them to the state and courts, we ‘steal the conflict’ and remove communities’ opportunities to resolve them directly and the benefits that might result in doing so. Even in restorative practices, and in prescribing (or directing) the kinds of reparation wrongdoers might make in community payback, we still limit the social benefits and rehabilitative power of local resolutions.
In a Big Society model of locally administered justice, the balance between punishment and rehabilitation, and how each is delivered, should be for communities and victims to determine, within the wider legal framework. And of course, we have to take care to respect victims’ wishes, and ensure social sentences do not cause problems and burdens for those assisting in carrying them out.
In the Lords’ debate, Baroness Miller felt that the “possibility of rehabilitation is a very worthy objective, but one which perhaps all too often does not work. Community service orders are regrettably inadequately staffed and funded and sometimes consist of futile lamppost-counting operations.” Social sentences make the possibility of rehabilitation in the community more practicable; provides more meaningful activities to be carried out in the sentence; and provides more capacity for administering the sentence.
Such options can be applied through the magistracy (which deals with over 90% of all criminal cases), neighbourhood resolution panels, and other restorative mechanisms. In fact, there is the possibility of developing more socially productive sentences through existing means. Community payback currently offers the opportunity for local people to nominate work/projects. So go on, nominate a social sentence, and let me know if you are successful.
Of course, other readers may just want to nominate people whose company or conversation feels like a (different kind of) social sentence. I can feel my colleagues exchanging knowing looks already…
Is Osborne a closet Rawlsian?
To stop myself from writing mini-essays pretending to be blogs, I’ve set myself a 30 minute limit to knock this out. Let’s see how it goes.
I ask this question with more than a little tongue-in-cheek and not entirely seriously. He would probably want to vomit at the very thought of it. How many people, let alone political conservatives, really believe, like John Rawls, in the ‘difference principle’ (i.e. the principle that the only social and economic inequalities that are morally justifiable in society are those that work to the benefit of the least advantaged in society) and the radical egalitarian project this belongs to?
But perhaps the question is not so silly. Read Osborne’s first budget speech and listen to Clegg’s recent response to the IFS analysis of that budget and you’ll come across core Rawlsian concepts of justice. Osborne tells us that fairness is the first principle of the coalition’s economic policy. For Rawls, justice and fairness amount to the same thing. Indeed, he later described his theory of justice as ‘justice as fairness’. The government’s social and economic policy agenda is progressive and fair, or so we are told, because it will improve the lot of the least well-off in society in the long-term, while ensuring that they’re protected more than most from the forthcoming fiscal cuts. Why? Because this is only fair.
This would seem to be classic Rawls. The IFS analysis and the battle between the Treasury and DWP over welfare reform would seem to suggest something very different. The reality is that the coalition government lacks any obvious substantive philosophy of fairness. It desperately needs this if it’s going to be the transformative government it says it wants to be. We are told that Steve Hilton meets every policy proposal in Downing Street with a question I rather like: ‘but is it transformative?’ Great – but for what purpose? This question cannot be adequately answered without a coherent philosophy or conception of fairness. I doubt any government can have strategic direction or be socially and economically transformative without this.
The concept of fairness is being emptied of content – this is certainly not specific to the coalition government. Fairness has become a kind of mantra for politicians who want to sound at once socially progressive and in tune with the basically centrist instincts of the British electorate. But fairness is not an unambiguous concept government or political parties can appeal to when wanting to legitimise their policies. Fairness, or so it seems to me, is really a less morally charged way of talking about justice. What we consider to be fair inevitably reflects some of our basic views of what the just order of society and social relations should be.
Like a tautological circle, this leads us back to Rawls. I’ve just finished re-reading chunks of A Theory of Justice for a pamphlet I am writing on how we might develop a more progressive view and set of policies around citizen rights and responsibilities. It is nearly forty years since the book was first published. Like other versions of contractarian liberalism (and Kantian liberalism), his political philosophy has always seemed to me enormously powerful but also too state-centric, and his view of the world and social relations too legalistic and bureaucratic for my liking. Rawls also prematurely brackets questions of the good, which seems to me an impossible ask of both individuals and any government. But reading him again, I find myself in awe of the sheer intellectual force and conceptual rigour of his thinking. And who could fail to be moved by the moral conviction of what remains a radical political and moral philosophy we can all learn from and argue with? Only those without a heart or mind.
Finished. 37 minutes. Fail.
What rights and responsibilities could you get behind?
The hard reality of the spending cuts our new government will make in the next few years will force us to re-think what public services are and should be. The looming “age of austerity” will also demand that we ask more searching questions about the type of society we want to live in and the type of citizens we need to be. It certainly has me.
The future of public services and the social values we hold are essentially connected: public services reflect wider social values. It is no coincidence that the marketisation of public services took place alongside the rise of an anti-collectivist, hyper-individualised ethos in our society in which levels of social solidarity, feelings of belonging and support for economic redistribution have all declined.
This has got we thinking about social values and rights and responsibilities. The Ministry of Justice published a recent review which showed broad public support for having a British “Statement of Values” and “Bill of Rights and Responsibilities”. The problem is the recommendations lack ambition, and lack any coherent account of how abstract rights and responsibilities might be turned into new forms of solidarity and collective action.
Excessive individualism is frequently argued to be behind many of the problems in our society from substance abuse to family breakdown. This argument is used by Philip Blond and some of those on the political right to support their wider diagnosis of “Broken Britain”. They argue that today people have too many individual rights and too few collective responsibilities. Rooted in a nostalgic longing for a mythical agrarian utopia, the argument for increasing responsibilities at the expense of rights assumes that we can increase responsibility among people and communities only by cutting our rights-based culture down to size.
This strategy of rebalancing rights and responsibilities is based on an ideological commitment to what Robert Nozick called the “limited state”. It is not based on policy research into what actually increases collective or individual responsibility. This way of viewing the world, which casts the state as the devil, does succeed in redistributing responsibility from state to citizen. But it does so without a realistic strategy for actually fostering behaviours and ways of thinking that embody individual and collective responsibility (i.e. pro-sociality and pro-civic action). It’s about as stupid as throwing money at public services that are structurally incapable of delivering the outcomes you want.
In a forthcoming pamphlet as part of the Citizen Power programme we will outline an alternative view. At the heart of the pamphlet will be the argument that building the “big society” will depend on generating new forms of civic activism and collective solidarity. And for this we need to establish stronger citizen rights and responsibilities (not fewer rights) focused on core capabilities people and communities need to flourish.
These provisionally include “citizen rights” to influence over local and national decision-making; community ownership; transparency of information; resourcefulness (e.g. networks of solidarity); emotional resillience and creative individual and collective self-expression, and “citizen responsibilities” to participate in local community life; support the most vulnerable in society; protect the environment; cultivate civic health and well-being, and be more self-reliant.
The big challenge is working out how you might make this work in practice and how you boil down abstract principles into clearly defined objectives. The pamphlet will outline practical policy recommendations for doing this. We explore the possibility of rolling out “Citizen Contracts” across the UK. These would be locally deliberated, formal agreements that hold public services, communities and citizens to account and would be based around stronger citizen rights and responsibilities to civic life.
The objective is not solve these massive political and philosophical issues. The point will be to open up a debate about how we might develop practical policy proposals for building civic soldarity, and what rights and responsibilities a Citizen Contract should or could include.
What citizen rights and responsibilities would you include in your Citizen Contract?
Find out more about Citizen Power
Rights and responsibilities: developing our constitutional framework – summary of responses [Minstry of Justice PDF 125KB]
It’s NOT about ‘jobs’, stupid.
The RSA event advertised in our last post, Can Online Markets Tackle Poverty? was a rallying cry for Whitehall to get over their fixation with creating ‘jobs’ and start focussing on using technology to develop existing economic activity.
As Jerry Fishenden(Centre for Technology Policy Research) put it: “The state’s idea of what a ‘job’ is is constraining productivity” and Wingham Rowan(Silvers of Time Working) added that “local authorities are beaten up by Whitehall on job creation” (thereby constraining attempts to create more flexible labour markets).
The problem is not jobs as such, but untraded resources, especially time. The focus should be on how we better harness and develop existing economic activity and help people earn money, rather than how to create ‘jobs’.
So how can we help people earn money? Who are ‘they’, and what is stopping them? It seems they tend to work at the lower end of the economic spectrum, functioning in what Wingham Rowan called unfocussed markets, where the conditions for the demand and supply of labour are fuzzy and changeable, and buyers and sellers can’t find each other(the exact opposite of the more efficient targetted markets- the kind that traders operate in).
Think baby sitters, people wanting to borrow a bike, others wanting to borrow a tenner to pay back the next day etc. There is lots of such ad hoc economic activity.., things hired, time offered, money lent, and many can do work of this nature who can’t fit in to a job structure.
The solution lies in new technology that we know to work well calledNEMs: National E Markets. Think Ebay writ large and better regulated. Slivers of Time working is an exmplar in this field, but merely one example of a much wider and still under-utilised phenomenon.
I liked the example given by Wingham Rowan:
If you suddenly need a baby sitter, you might be horrified of looking for one online, but you don’t need to merely post an add on a random website. Instead you have access to a focussed market where you can see existing baber sitters, be certain that they have the relevant CRB and ISA checks completed, have a certain amount of experience and references etc. You can aslo narrow your search to find baby sitters who have worked in your area, or with people you know. The technology can do all this hard work for you, and tell you exactly how much it will cost. You get meaningful data immediately- the kind you need to take a quick decision, just like traders do all the time… so, strange though it may seem, NEMs become a very safe way to get a baby sitter. And of course, from the baby sitter’s perspective, they are not locked in, not forever doomed and blessed to have the ‘job’ of being a babysitter, but being one as and when it suits.
How can such a system we brought into being? The most likely scenario would be that, as with the National Lottery, the private sector would fund these markets if Government could put the conditions in place.
The technology is not the problem, the problem is political will and bureaucratic inertia. The British welfare system has a binary view of being in work or out of it. If you can only earn £25 a week before your benefits are cut, you are implicitly encouraging people to work in the informal economy, or to put it more sharply, the black market. (And in this respect, Mathew Taylor commented that while working in goverment he noticed the strange reluctance of politicians and civil servants to even talk about the informal economy; “nobody wanted to go there”.)
The Government needs to work much more with the natural behaviour of people. Selling time and possessions, rather than products as such, is very difficult to regulate, tax etc, but it can and should be done.
Of fascists and the fascinating Mr Wilders
Anyone who thinks that researching community cohesion and working with communities is from the warm, fluffy and intellectually flabby end of the policy spectrum be warned. This post will touch on the tough stuff – freedom of speech, the trouble with human rights and Bounty Killer.
I’m going to start with a controversialism: I wanted to see Mr Geert Wilders’ film about the “fascist” Quran.
This is not to say that I agree with anything in it, or like it, or want to see it on general release at the Brixton Ritzy.
But I’ve always made it my business to know my opponent’s arguments, and as an ex-journalist and in my current profession I feel I have a duty to understand the people that perpetuate our society’s deepest cleavages. I have at times extended that courtesy to members of the organisations Mr Wilders’ polemic attacks. I ought to extend this approach to Mr Wilders too. I like to think that if a moderate majority were to engage with his arguments, we could render them ludicrous by their very extremism.
So I’m sitting here watching it online, at work. It’s not subtle stuff: in fact, it’s rediculous and vacuous. You can watch it too, anyone with a reasonable internet connection can do so. This has been pointed out to the Home Office, who have banned him from entering the country on the grounds that he will incite hatred.
But that of course is not the point of the ban: it’s to send out a message about what is an obscenity in our society. Encouraging discrimination and violence against a person because of their faith, race or sexual orientation is considered obscene and therefore unspeakable. The aforementioned Jamaican rapper Bounty Killer was refused entry to the UK because of his homophobic music, though you can download it all you wish. The Muslim cleric Dr Yusuf Al-Qaradawi is also banned from Britain on the basis that he is a threat to community cohesion.
This is a profound challenge to those who work with deeply divided communities. My friends who work in this field say striking the balance between protecting the security of minority interests (who, let’s be honest, aren’t necessarily saintly themselves) and the wider community’s freedom of speech is doubly challenging. Firstly, that freedom of speech is our most fundamental protection against oppression.
Secondly, such extremism often exploits a real or percieved threat to the security of a community. Those I know who are involved in cross-community conflict resolution have often unearthed visceral anger and a lust for revenge alongside righteous indignation about injustice. But we do need to be able to talk about that sense of insecurity and injustice, and explore it, in order that it be demystified and resolved.
If we just don’t talk about the darker forces in our communal life, we reduce our capacity to negotiate conflict. Rendering something like anti-Semitism or homophobia unspeakable, obscene and refusing any mention of it isn’t quite the same thing as dealing with it. We tried that with sex once and it didn’t work; people kept on doing it. The internet is only a traceable network that demonstrates a pre-digital process: it is virtually impossible to effect a ban on hate-speech. Some would argue this renders the whole right to freedom of speech vs. minority rights argument, indeed the whole Human Rights schema, to be a straw dog.
However, most legal systems recognise Rights to be in a slightly different category to other laws about the curve of bananas or the statutory duties of social workers. They are quasi-sacred guiding principles for self-governance – taboos if we want to get Freudian.
By all means make an example of what an idiot Mr Wilders is, and Mr Al-Qaradawi too while we’re at it. But let’s use this as an opportunity to think about what it means to be guided in our daily lives by respect for others, and how we can create more spaces in our communities for reconciliation and redressing grievances rather than repressing conflict altogether.
Twitter feed of #theRSA- "A cheerful Friday read from @pickfordrich about a forestry apprenticeship in Lincolnshire http://t.co/zB9fxfC9cI #theRSA"look @trivett_lisa May 18, 2013 pickfordrich (Rich Pickford)
- "A society is defined by how it treats its weakest citizens" #thersa May 18, 2013 janseurinck (janseurinck)
- What a fab trip to Norwich - project planning with RSA Fellows, catching up @futureradio and then lunch in the Sainsbury centre. #theRSA May 17, 2013 ImAliceD (Alice Dyke)
- RT @theRSAorg: #thersa blog: Seeing the wood from the trees – A tale of two Fellows, a volunteer and some woodland http://t.co/qnnEGEZNYj May 17, 2013 LearningCities1 (LearningCities)
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