Academic journal article British Journal of Community Justice

Nonsense upon Stilts? Human Rights, the Ethics of Punishment and the Values of Probation1

Academic journal article British Journal of Community Justice

Nonsense upon Stilts? Human Rights, the Ethics of Punishment and the Values of Probation1

Article excerpt


This paper explores the potential for deploying the discourse of human rights to invigorate debate about the ethics of penal practices and in particular the values of probation. Human rights are argued to be the most promising basis for an ethically principled opposition to both excesses of punishment and an unduly instrumental understanding of penal practice. Recent themes in penal policy are identified and an account of human rights is set out. It is argued that human rights are distinctively important in discussions of punishment and that an attempt should be made to disentangle those rights that are appropriately forfeit as legitimate punishment and which rights should be retained. Two misgivings about human rights are identified and addressed. The place of the Council of Europe in working out the real-world implications of the European Convention on Human Rights is considered. The Council of Europe can also help to develop a legal framework to support its ethical initiatives. It is concluded that penal practice grounded in human rights affirms the responsibilities of offenders and therefore constitutes an appropriate penal communication. Ethically informed penal practice promotes legitimacy and perhaps enhances effectiveness in reducing reoffending.

Key words: Human Rights, Penal Policy, Probation, Council of Europe, Probation Values

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

Cavad ino 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 'evide nee -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. …

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