Academic journal article British Journal of Community Justice

Nonsense upon Stilts? Human Rights, the Ethics of Punishment and the Values of Probation

Academic journal article British Journal of Community Justice

Nonsense upon Stilts? Human Rights, the Ethics of Punishment and the Values of Probation

Article excerpt

In this paper, I argue that the discourse of human rights represents the most promising basis of a strategy to reaffirm the suppressed significance of ethics in penal policy against both the excesses of punishment and a preoccupation with instrumental outcomes. Having identified some recent influential themes in penal policy, I put forward a particular conception of human rights, arguing that we can enrich penal debate with these ideas and principles. It will be suggested that the aspirations of the Human Rights Act, in the realm of penal policy at least, have to a large degree been frustrated. After offering some reasons for this disappointment, I consider ways in which human rights discourse might be more effectively deployed. It will be argued finally that the values of probation could--and perhaps should--be framed in the language of human rights.

Themes in Penal Policy

Cavadino and Dignan have usefully identified three dominant 'strategies' that have influenced penal policy in recent years (Cavadino and Dignan 2008; Cavadino, Crow and Dignan 1999, developing the working 'credos' identified by Rutherford 1993).

Strategy A is the affirmation of punishment--'a powerfully held dislike and moral condemnation of offenders, and the beliefs that as few fetters as possible be placed upon the authorities in the pursuit of criminals who, when caught, should be dealt with in ways that are punitive and degrading' (Rutherford 1993: 11). As other commentators have also noted (Bottoms 1995; Garland 2001; Pratt et al. 2005), a zeal for punishment characterises contemporary debate. No politician dares risk the accusation of being 'soft on crime'. Tough punishment is deserved and protects us--through deterrence and incapacitation. The more punishment there is, the safer we all will be.

Strategy B is concerned to 'dispose of the tasks in hand as smoothly and efficiently as possible. The tenor is one of smooth management rather than of moral mission.' (Rutherford 1993: 13) This emphasises managerialist imperatives of cost-effectiveness, often with bureaucratic indifference to ideas of harshness or leniency. It recognises that criminal justice practices cannot eliminate crime: crime must be managed and responded to effectively, efficiently and economically. The insistence on 'evidence-led' practice--on 'what works'--fits well with this approach. B has an instrumental conception of criminal justice, setting as its priority the reduction of offending and reoffending and the protection of the public. The strategy is also characterised by other managerialist precepts: setting objectives and targets, performance management, quality assurance, inspections, Area rankings--all with their inevitable preference for auditable episodes and achievement and is accomplished as well in the day-to-day practices of actuarial assessment and working to National Standards.

Strategy C is often implicit and not commonly avowed by policy makers. This is the strategy of what Rutherford calls 'decency', affirming the worth of offenders and victims (rejecting the idea of any necessary trade-off in their interests). It insists on the importance of fairness and justice; is sceptical of the efficacy of punishment, in particular cases and as a general strategy for reducing crime; and is suspicious of the social, cultural and ethical consequences of enthusiasm for punishment.

As Cavadino and Dignan rightly insist, these three strategies are 'ideal types', never found in a pure form, but co-existing and finding differences of expression in most contemporary jurisdictions. Indeed all of these strategies no doubt have a proper place in penal policy. Even as we may deplore the excesses of Strategy A and notice that retributive passions are selective--Strategy A prefers to avert its gaze, for example, from the wrong-doings of the powerful--few people deny the legitimacy of punishment for crimes. Again, without the disciplines and organisation of Strategy B, it is hard to see how any penal objectives could be realised or progress towards them evaluated. …

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