What have been the major shifts in Criminal Justice policy since the
end of the Second World War and how are these shifts best explained?
Upon analysing the historical perspectives of criminal justice policy in British society it can be stated that on most occasions, one over-riding model has been in the ascendancy. However even during such a dominant period (i.e. the treatment model of the 1950s and 1960s) there are always other forces at work, that is there are several alternative strands of thinking which exist alongside, and compete with, the dominant rationale. This is an important notion within the context of this essay, which will attempt to describe and explain the shift in criminal justice policy, whilst at the same time acknowledging those other competing perspectives which may have facilitated the shifts in dominant criminal justice policies since the Second World War. It is also important to acknowledge that the main competition between policy rationales has been between the retributive approach (i.e. just deserts), which looks back to the crime that has occurred, and the perspective that concerns itself with what can be done for the future; reductivism. Despite the domination of two such polarized views, compromise theories also exist, for example the restorative model of justice which surfaced in the 1998 Crime and Disorder Act with the introduction of the reparation order.
When embarking upon a journey to describe and analyse the major shifts of criminal justice policy it is important, at this stage, to offer a definition of the concept. According to Rutherford (1990) criminal justice can be broadly defined as ‘the whole of society’s specific response to the problems posed by the phenomenon of crime.’ On this premise criminal justice policy contains the core aspects of the measures taken to combat crime at every stage of the process; including the protections afforded to individuals, the anti-discriminatory practice of criminal law, that status of the victim and what Rutherford (1986) describes as the ‘multi faceted arena of crime prevention.’ Of course there are many definitions which offer alternate perspectives, yet comparing and contrasting such differences would warrant an essay in itself.
Prior to the Second World War the over riding criminal
justice policy was that of the neo- classicist punitive penitentiary model,
which developed largely from the works of Beccaria (b 1738) and Bentham (b 1748).
However the emergence of the positivist methodology and its approach to
criminality resulted in the increasing dominance of the treatment model from
that period onward. Criminal behaviour was viewed through the medical model,
which proposed that with proper rehabilitation criminals could be treated for
or cured. According to Garland
(1997) ‘Criminal Justice was to cease
being a punitive reactive system and was to become a scientifically informed
apparatus for the prevention, treatment and elimination of criminality.’
Indeed this way of thinking gradually came to dominate criminological thinking
and rhetoric, and the 1948 Criminal Justice Act (C.J.A) abandoned the punitive model in favour of the
rehabilitative ideal. This was epitomized by the increased role of the
Probation Service. The 1950s and 1960s were times of rehabilitative optimism,
typified by the opening of Grendon Underwood in 1962, which was a purely
therapeutic prison. During this period judges practiced wide discretion in how
to sentence offenders, Probation, with its over riding social work ethos,
became used extensively as an alternative to incarceration (to advise, assist
and befriend) and parole was implemented on a national scale (C.J.A 1967). As
offenders were ‘treated’ for their behaviour most people accepted that the
professionals in charge of the treatment knew best in how to deal with the
problem.
By the late 1960s the rehabilitative ideal began to lose favour as the underlying philosophy of the criminal justice system and by the early 1970s it suffered a ‘precipitous reversal of fortune’ (Cullen & Gendreau 2000) in that it came under attack at three key levels; theoretically, ethically and empirically. This began with a report published in the U.S.A by the American Friends Service Committee (1971) which challenged the treatment ideology on the basis of its frequent association with injustice and neglect of the rights of the individual. The momentum for criticising the ideal gathered pace and the much maligned claim by Martinson (1974) that ‘nothing works,’ concluded that measures to reform offenders were no more effective in preventing re-offending than punitive measures. Furthermore he stated that ‘whilst programmes in the community did not work…..they cost less than prison.’ (Crow 2001 Pp.27). In Britain the work of Brody (1976) and the IMPACT study (1976) published findings that were consistent with Martinson’s conclusions. There were of course alternative studies that identified the positives of rehabilitation at this time (i.e. Palmer 1975) yet such findings proved too little too late for the survival of the rehabilitative ideal.
The decline of treatment and rehabilitation as the central focus of penal policy had a considerable impact on criminal justice. A ‘vacuum’ appeared and there was, at this point, no single rationale ready to move unchallenged into the gap left by the demise of the treatment model. According to Hall (1979) this led to an ‘ideological tilt in the direction of law and order ideology.’ The response to this collapse by the Labour and Conservative Governments during the 1970s was predominantly pragmatic, with the primary aim being simply to reduce the number of those imprisoned, or as Tarling (1979) put it the focus was on ‘containment.’ These efforts took the form of encouraging sentencers to use custody less extensively and for shorter periods. Furthermore a greater variety of non-custodial options were introduced and an increased number of prisoners were released earlier in their sentence by the parole mechanism. These moves by the Government were what Bottoms (1977) described as the first ‘perceptive sighting towards bifurcation.’ Essentially this period embraced an overall strategy for the prison population to achieve a ‘standstill.’ However Rutherford (1986) stated that this period ‘amounted to an effort to hold the line on prison population size,’ yet by the end of the 1970s this Standstill Policy was near to collapse.
In 1979 the Conservatives came to power under the guidance of Margaret Thatcher, and ‘law and order’ had never been such a prominent campaign theme. The party committed themselves to increasing the resources of the Criminal Justice System, introducing ‘short, sharp, shock detention centres’ and increasing the sentencing powers of the courts (C.J.A 1982). The then Home Secretary (William Whitelaw) attempted to inject an element of liberal pragmatism by introducing earlier automatic parole for short termers, but this was defeated in 1981 at the Conservative party conference. In 1982 the Home Secretary officially announced the end of the standstill policy, and the growth of a rising law and order rationale which heralded the birth of the most extensive programme of prison building this country had seen in the 20th century, with the planned construction of 21 new prisons at a cost of ‘£1.2 billion pounds’ (Barclay 1995).
What this shift did not herald was that the penal practice of the Thatcher Government had been entirely governed by law and order ideology. Pragmatic considerations still encouraged diversions for less serious offenders (the continued emergence of bifurcation) in an era that Bottoms described as ‘the renaissance of dangerousness.’ The Government also lent its increased support to the use of ‘alternatives to custody.’
However the overall penal strategy of the 1980s was not seen to be an ‘outstanding success’ (Cavadino & Dignan 1997). Throughout this decade the prison population continued to rise, from 42,220 in 1979 to 49,949 in 1988. Outbreaks, riots and disorder became regular occurrences, ‘more so in Britain than in any other European country,’ and the short sharp shocks were said to be ‘disappointing’ (Cavadino and Dignan 1997), Furthermore recorded crime had risen every year, with the exception of 1983, and Britain’s inner cities were plagued by serious rioting in 1981 and 1985. At this point Thatcher’s reign as PM, and her implementation of criminal justice policy, was summed up adequately by an article in Punch magazine, which described her ‘bark as dogmatic’ and her bite ‘pragmatic.’
By 1987 the prison population had reached an all time high of 50,979, and projections suggested that it would reach 60,000 by the end of the decade. The election in the same year gave way a new approach by the Conservatives; the need to get tougher, yet this tactic was dubbed ‘eclectic pragmatism and away from the rhetoric of law and order.’ A multi-faceted approach to crime and punishment was adopted by the government; including ‘voluntarization, privatisation, crime prevention and the role of community in schemes.’ (Reiner & Cross 1991). What became prominent in this new pragmatic mix was the theme of managerialism, which embraced criminal justice agencies such as the Probation service (which began with the introduction of SNOP in 1984), and included a continued favouring of the systems management approach to criminal justice.
In 1988 a Green Paper, published by the government and entitled ‘Punishment, Custody and the Community’ signaled signs of fresh thinking towards criminal justice policy-that of populist punitiveness. The introduction to the paper stated that ‘imprisonment is not the most effective punishment for most crimes’ and its negative view of imprisonment continued in its statement that ‘prison can be an expensive way of making bad people worse.’ This culminated in the introduction of the C.J.A. 1991, which embodied a philosophy of just deserts, which in turn was heavily influenced by classicist notions particularly the justice model. This also gave effect to a framework of proportionality for sentencing, whereby the sentence passed had to reflect the severity of the offence.
The just deserts package represented an attempt to tackle not only the material crisis of resources (the cost of the CJS to government spending was colossal), but also the general ideological crisis of legitimacy. Indeed in the first months following the implementation of the 1991 Act there were falls in the prison population, and up until the autumn of 1992 the government held to the strategy, along with the acceptance of the Woolf report (1990) and a managerial approach to criminal justice. Leading up to the 1992 election the then Home Secretary, Ken Baker, declared war on motor offenders and ‘bail bandits,’ and for a time it seemed that a return to 1979 style law could resurface onto the political agenda, yet at the same time there were even suggestions that the era of law and order ideology as a potent force in criminal justice policy was coming to an end (Reiner & Cross 1991, Cavadino 1994).
From autumn 1992 the tone of criminal justice policy began to alter yet further. This largely came about due to a backlash from the judiciary and the media against the ‘softness’ of the C.J.A 1991. In an unorthodox move the Government did not defend its own policies against the backlash, but instead moved into the role of critic. This led to the abandonment of its attempt to reduce prison numbers, the dismissing of the findings of the Woolf report and the apparent rejection of systems management. The need for a new approach to policy was encapsulated by the murder of Jamie Bulger in February 1993. In the aftermath the then Prime Minister (John Major) stated that ‘society needs to condemn a little more and understand a little less.’ (The Mail on Sunday Feb.23rd 1993). During this period Major’s government undertook a spectacular u-turn on penal policy, with the Home Secretary’s (Michael Howard) approach characterized by the rhetoric of law and order in the pursuance of a punitive approach, a central role in Major’s ‘Back to Basics’ initiative. In 1993 Mr Howard introduced a 27 point plan to toughen up the criminal justice system and emphatically stated that ‘prison works.’ This claim effectively abandoned the notion of retributivism and moved towards a belief in deterrence and incapacitation. His retreat from Woolf’s findings was characterized by his belief that prisons should be ‘decent but austere.’ By 1995 the two/three strikes law and massive cutbacks to early release schemes were introduced, and as a result the number of people sentenced to custody rose from 58,000 in 1992 to 69,200 in 1994.
The mid 1990s then heralded a more punitive adaptation of the just deserts model, and seemed to represent what Cavadino and Dignan labeled a ‘temporary staging post on a rapid journey heading in the direction of the law and order society.’ They facilitate such a belief by arguing that the justice model paved the way for the transition to a more punitive penal system and a more authoritarian society. This could be justified by the unveiling of Green and White papers (1995 and 1996 respectively) which clearly pursued policies based around the idea that ‘prison works.’
Despite the emerging dominance of Law and Order as the rationale for criminal justice policy a movement at around this time signaled the re-emergence of the rehabilitative ideal (dubbed ‘new rehabilitation’) in the format of the ‘What Works’ movement (McGuire 1995). Over time the ‘Nothing Works’ ideology became increasingly subject to criticism (Palmer 1975, Ross & Gendreau 1979) and even Martinson retracted what he actually said in 1979. The What Works movement began to focus on the effectiveness of cognitive behavioural approaches to reducing re-offending rates, and in 1991 the first such programmes were introduced in Mid Glamorgan Probation Service (STOP programme) based on ‘Reasoning and Rehabilitation’ programmes developed in Canada in the 1980s. The influence of this movement can be characterized through the changing structure and purpose of the Probation Service, which successfully adopted the What Works initiative despite the continued pressure from the government for it to be a law enforcement agency.
In 1997 New Labour came to power after eighteen years of Conservative rule. The 1998 Crime and Disorder Act focused on the need to balance individual rights with responsibilities, and signified a move away from just deserts to a more holistic approach to tackling crime. At this moment there was again the possibility of a further shift in the underlying principles of the criminal justice policy. However the C.J.A 2003 not only pursues the populist punitiveness of the late 1980s and early 1990s, but threatens basic civil liberties and adopts an authoritarian policy. It could therefore be argued that the 1998 C.D.A was simply a momentary diversion away from the pursuance of a law and order society.
In 2005 law and order is again high on the agenda for both the Conservative and Labour Governments. Under New Labour the prison population has soared to over 70,000 (IRR News 2003). Indeed the government’s authoritarianism is highlighted by its encouragement to courts to send more people to prison and has abandoned due process of law in favour of summary punishments. Labour has promised to cut crime by 15%, whilst the conservatives have taken an even more punitive stance by informing the voter that it will expect all prisoners to serve their sentences in full. With the unveiling of the new National Offender management Service, also in 2005, whose purpose is to deliver community based punishments, it is clear to see that the dominant rationale continues to be the ideology of law and order, and that furthermore it seems to be tightening its grip as the dominant force.
In conclusion one would ascertain that there has been fundamental shifts in the criminal justice policies within British society. One would argue that these shifts have occurred primarily due to political factors. However the influence of public and media outcries and research that highlights failures of certain models (Martinson 1974) have also played pivotal roles in facilitating those shifts identified. As for the future of penal policy one can draw from the works of Cavadino, Crow and Dignan (2000) who state that there are three options for criminal justice policy in Britain to go. Strategy A is what they deem the ‘futile quest to control crime by increasingly hard punishment.’ Strategy B follows the approach of managerialism, bureaucracy and cost effectiveness. Strategy C adopts a principled approach based on the ‘rights of the victim and the offender’ through the means of rehabilitation, reintegration and restorative justice. It is the author’s opinion that the evidence put forward suggests that if current trends continue strategy A will eventually dominate criminal justice policy, and strategies B and C will be redundant by the end of the decade.
References
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‘Reflections on the Renaissance of Dangerousness’ Pp. 70-96
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New Labour and new authoritarianism in criminal justice
http://www.irr.ork.uk/2003/january/ak000009.html (Accessed 22.04.05)
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