Community Sanctions & Measures WG Community Sanctions & Measures WG Lund May 2014Lund May 2014

Legitimacy, Resistance & Guilt: the Roles of Pre-Sentence

Investigation in Punishment

Prof dr Cyrus TataProf dr Cyrus TataCentre for Law, Crime and Justice Centre for Law, Crime and Justice

Strathclyde Law School, ScotlandStrathclyde Law School, ScotlandCyrus.Tata@strath.ac.uk

Official PurposesOfficial Purposes

Relevant personal & social circs info Relevant personal & social circs info for the court to assist sentencing for the court to assist sentencing

Quality, ideological shifts, influenceQuality, ideological shifts, influence Perpetual anxiety about actual Perpetual anxiety about actual

impact – mere empty symbolism?impact – mere empty symbolism?

What else do PSIs do?What else do PSIs do?

1.1. Elicit Tease in response to attempts Elicit Tease in response to attempts at judicial captureat judicial capture

2.2. Accelerate ‘disposal’ through Accelerate ‘disposal’ through expressive moral performanceexpressive moral performance

I Elicits Tease in response to I Elicits Tease in response to attempts to capture judicial attempts to capture judicial

sentencingsentencing Promise of the reveal (e.g. for penal Promise of the reveal (e.g. for penal

reduction)reduction) Quest to apprehend judicial Quest to apprehend judicial

sentencingsentencing Quality-as-Judicial-Satisfaction leads Quality-as-Judicial-Satisfaction leads

to influence? to influence? Destination ‘Quality’ ?Destination ‘Quality’ ?

“Consumer society thrives as long as it manages to render the non-satisfaction of its members (and, so in its own terms, their unhappiness) perpetual….The yawning gap between promise and delivery is neither a sign of malfunction, nor a side-effect of neglect or the outcome of a mistaken calculation…..[It] is a necessary condition of a properly functioning society of consumers. If the search for fulfilment is to go on and if new promises are to be alluring and catching….hopes of fulfilment need to be regularly frustrated.” (Bauman 2007: 46-7 original emphasis retained).

Consumer ModelConsumer Model

Js as sovereign consumers of reportsJs as sovereign consumers of reports “An instability of desires and insatiability

of needs” (Bauman 2007: 31) Promise of the new solution (national Promise of the new solution (national

standards, risk assessment tools, standards, risk assessment tools, ‘alternatives’ to custody)‘alternatives’ to custody)

““Inbuilt obsolescence”Inbuilt obsolescence” We are all Consumers of expressed judicial We are all Consumers of expressed judicial

desires: govts, lawyers, social workers, desires: govts, lawyers, social workers, probation, academicsprobation, academics

II. PSIs Manage II. PSIs Manage the Felt Gap Problemthe Felt Gap Problem

In the books vs actionIn the books vs action But How do professionals cope?But How do professionals cope?

Sense of Guilt / Sense of Guilt / DiscomfortDiscomfort

Starting point: we like to see Starting point: we like to see ourselves in positive light and through ourselves in positive light and through how we believe others perceive ushow we believe others perceive us

Justification is inherent in inter-Justification is inherent in inter-personal encounters (Levinas)personal encounters (Levinas)

Finding ways of justifying changes in Finding ways of justifying changes in profl action once deemed wrong profl action once deemed wrong (eg Tata (eg Tata 2007 legal aid)2007 legal aid)

Awkward Awareness of gapAwkward Awareness of gap

Sense of Professional Sense of Professional GuiltGuilt

““On a practical level sometimes you don’t On a practical level sometimes you don’t have as much time when you’re doing have as much time when you’re doing summary criminal legal aid work summary criminal legal aid work as you as you perhaps should perhaps should have with individuals”have with individuals” [def [def lawyer intv 10, psr study]lawyer intv 10, psr study]

‘‘It’s just a Factory’It’s just a Factory’ ‘‘Not what it was’Not what it was’ Could and should be better but resourcesCould and should be better but resources Explanations to novices (eg also Explanations to novices (eg also

socialisation)socialisation)

The Menace of the Gap The Menace of the Gap ProblemProblem

But for justice professionals the gap would But for justice professionals the gap would make everyday summary work untenablemake everyday summary work untenable

‘‘Professional’ – claim superior ethical Professional’ – claim superior ethical standardsstandards

As a custodian of justice As a custodian of justice Coercion has to be legitimated Coercion has to be legitimated A Sense of guilt, shame and A Sense of guilt, shame and

embarrassmentembarrassment

Defendant Expressions in Admission of Defendant Expressions in Admission of GuiltGuilt

Ideal Ideal

Free, full & sincere Free, full & sincere admissionadmission

Defendant’s Voice is Defendant’s Voice is heardheard

Individual ResponsibilityIndividual Responsibility MitigationMitigation

Closed guilt Closed guilt

DisruptiveDisruptive

Straight denial (factual)Straight denial (factual) Threat of worse Threat of worse (trial tax, (trial tax,

remandremand))

Unsure/confusedUnsure/confused Fatalism/System Fatalism/System

ArbitrarinessArbitrariness Conscious non-Conscious non-

engagementengagement Exculpation / moral Exculpation / moral

challengechallenge

Open Guilt Open Guilt

Exculpation & System Exculpation & System ChallengeChallenge

The social worker will say, ‘how do you The social worker will say, ‘how do you feel about this offence?’ And he’ll say, feel about this offence?’ And he’ll say, ‘how do I feel about it? I’ll tell you how I ‘how do I feel about it? I’ll tell you how I feel about it. That guy that I assaulted feel about it. That guy that I assaulted hehe should have got the jail. should have got the jail. HeHe deserved it! deserved it! He had that coming to him. I just pled He had that coming to him. I just pled because my lawyer told me to plead because my lawyer told me to plead guilty.’ guilty.’ [Interview, defence lawyer 7][Interview, defence lawyer 7]

M: Because the police will lie through their teeth to get a conviction, not all of them. [Face to face interview Accused 12, Scald study]

Systemic DistrustSystemic Distrust

I: Right. Do you think the system has been fair in your cases?M: No.I: Why do you say that?M: Just as I says they listen because the police had uniforms and they work for the law, they’re no gonnae listen to lower down, low people as some people would say. [Face to face interview Accused 9, clad study]

Systemic DistrustSystemic Distrust

*I: Do you think you always have the chance to put your side of the case?*M: No, no’ really no.*I: Why not?*M: Just cause I’ve picked up charges since I was a very young age an that, I’m always gonnae get picked oot straight away you know what I’m talking aboot, they’re gonnae always say it was me.[Face to face interview Clad study]

Defendants and their Defendants and their lawyerslawyers

*I: Do you think the Lawyer is good at communicating with the Sheriff for you?*M: Yes, yeah.*I: Yeah. How do you find out what’s happening to your case?*M: I just go along with it.*I: Yeah, so do you have meetings with the lawyer beforehand or do you just see him on the day?*M: Yeah I’ve had a couple of meetings.*I: In his office?*M: No he’s came to see me in jail and most of the time when if I’m outside like I … I don’t know, sorta like when I go to court I’ll see him just before my case so it’s only a brief meeting like two minutes I get to see him .. five minutes, it’s not much you know.*I: No, so you think it should be more?

*M: Yeah definitely, I think it’s because he’s really busy, he takes on too many clients and if I only get to see him when he’s at the court he’s usually getting called for a case so I don’t really get much chance to speak to him you know. [Intv 10 Scald study]

Fear of WorseFear of Worse*I: Yeah. Are you happy pleading ..

*M: .. No. No. I'm no ha .. No. Not necessarily!

*I: Why not?

*M: Coz sometimes you get .. you'd be able to take it to trial and get away wi' it, eh, but it's easier to say […] “Guilty”, eh?. Get it done and over with, and get bail that day – especially when you’ve got a drug habit, eh?, and you're needing to get oot and get anything. You'll plead guilty to anything, ken? That’s me![Face-to-face interview Accused 4, SCALD study]

Confusion and System Confusion and System DoubtsDoubts

I: Is it because you don’t feel that you can tell him what to do or because you just don’t understand what’s going on?

M: I don’t really understand the courts you know, I’m just there just thinking he’s looking out for my best interests you know and sometimes that’s probably not the case, you know.[Accused 10 Face to Face Interview]

Displaying Fair JusticeDisplaying Fair Justice

Summary process notoriously abrupt – legit gapSummary process notoriously abrupt – legit gap Reliance on admission of guilt (plea/confession) Reliance on admission of guilt (plea/confession) beingbeing seenseen as a free decisionas a free decision

‘‘Dirty work’ (Hughes 1951/58/62; Ashforth & Dirty work’ (Hughes 1951/58/62; Ashforth & Kreiner); Purity & Pollution (Douglas 1966) Kreiner); Purity & Pollution (Douglas 1966)

““Visceral repugnance” Visceral repugnance” ButBut soc constructed standards of cleanliness soc constructed standards of cleanliness

and purity and purity Seen as both necessary and potentially

polluting

PSIs PSIs DisplayDisplay Process Process FairnessFairness

Present a Present a displaydisplay of humanity, dignity & unique of humanity, dignity & unique individualisationindividualisation

Participation - a ‘voice’ where otherwise noneParticipation - a ‘voice’ where otherwise none

Complaints/ ridicule also celebrate Complaints/ ridicule also celebrate apparent individualisation apparent individualisation

‘‘Context’: performs legal justice’s nod to distributive Context’: performs legal justice’s nod to distributive justicejustice

Closure through Closure through the display of the display of opennessopenness

Morally Dirty work of Morally Dirty work of PSIsPSIs

What makes it ‘dirty’? What makes it ‘dirty’? Challenges RoL justice imagesChallenges RoL justice images Protective functionProtective function Cleansing Cleansing DelegatedDelegated Morally dirty work is kept back-stageMorally dirty work is kept back-stage Enables Justice Professionals to see Enables Justice Professionals to see

themselves perform as they would themselves perform as they would preferprefer

Individualising & humanising Individualising & humanising roles of Reportsroles of Reports

you’re putting before the [judge] what you you’re putting before the [judge] what you would describe as a sort of generic fabric would describe as a sort of generic fabric within which you’re going to address, so within which you’re going to address, so he has a sort of feel for the human being he has a sort of feel for the human being before him. And it makes the procedures before him. And it makes the procedures slightly more humane. slightly more humane. [Interview, defence lawyer [Interview, defence lawyer 8]8]

The Role of Reports in a display of The Role of Reports in a display of Individualisation & Client Individualisation & Client

ManagementManagementLawyer: Oh my, yes. Aye, it makes an Lawyer: Oh my, yes. Aye, it makes an

immense [difference to] the client immense [difference to] the client actually: you also enhance his esteem. actually: you also enhance his esteem. That’s a marketing exercise, I may That’s a marketing exercise, I may add, but as a marketing exercise add, but as a marketing exercise you’re enhancing someone’s esteemyou’re enhancing someone’s esteem. . [Interview, defence lawyer 8][Interview, defence lawyer 8]

Moral Cleansing Work Moral Cleansing Work Prepares Cases for ClosurePrepares Cases for Closure

Disruptive / ResistantDisruptive / Resistant Straight denial (factual)Straight denial (factual) Threat of worse Threat of worse (trial tax, (trial tax,

remandremand))

Unsure/confusedUnsure/confused Fatalism / ArbitrarinessFatalism / Arbitrariness Conscious non-Conscious non-

engagementengagement Exculpation / moral Exculpation / moral

challengechallenge

Open Open

Facilitating / CompliantFacilitating / Compliant AdmissionAdmission Tactical / game playingTactical / game playing In denial - Work to be In denial - Work to be

donedone Accepts it’s InevitableAccepts it’s Inevitable ResponsibilisedResponsibilised Transformation or Transformation or

implicit condemnationimplicit condemnation

ClosureClosure

ConclusionsConclusions

Inform, advise, Inform, advise, but alsobut also Fortify boundaries and relative Fortify boundaries and relative

statusstatus Elicits Tease attempts to apprehendElicits Tease attempts to apprehend Generally (but not always) manage Generally (but not always) manage

the gap problem enabling sense of the gap problem enabling sense of moral closure moral closure

Largely legitimating but also reopen Largely legitimating but also reopen moral problemsmoral problems

Further QuestionsFurther Questions

1.1.Therapeutic/Cathartic for whom?Therapeutic/Cathartic for whom?

2.2.Are mass ‘free’ admissions universal?Are mass ‘free’ admissions universal?

3.3. Judicial Judicial Sense of Sense of PF by diff means? PF by diff means?

4.4.Does Low sense of PF lead to legit Does Low sense of PF lead to legit strain?strain?

5.5.Do PSIs make it more or less likely to Do PSIs make it more or less likely to ‘Punish in Bad Conscience’‘Punish in Bad Conscience’

6.6.So what does this mean for Probation’s So what does this mean for Probation’s role in legitimating force role in legitimating force (punishment)?(punishment)?

Questions?Questions?

•Prof dr Cyrus TataProf dr Cyrus TataCentre for Law, Crime and Justice Centre for Law, Crime and Justice

Strathclyde Law School, ScotlandStrathclyde Law School, Scotland

E: E: Cyrus.Tata@strath.ac.uk