Abstract
Keywords
Something fundamentally new is going on with criminal justice. In the United States, for most of the industrial and post-industrial era, the main agenda of a criminal justice system has been well settled. Police were supposed to patrol and respond to crime. Courts were supposed to adjudicate accusations and impose punishments. Penal agencies were asked to punish and rehabilitate. There were, of course, quite lively debates within these paradigms. Should the police patrol in cars or by foot? Should sentences be fixed or indeterminate? Is correctional work best performed in the community or through confinement? Similar debates have taken place in the United Kingdom. How shall the orders of the court be enforced? Can expanded use of confinement strengthen the deterrent impact of criminal sanctions? What can be done to bolster the role of ‘evidence’ in justice practices?
These and similar debates do not question the underlying idea of a professional, rights-based justice system. To be sure, the differing views on these issues were expressed in ways that were often heated. But the opposing views were internal to the logic of the system as we know it; they usually did not pose questions that challenged the basic assumptions of the system. They accept the given justice system as a starting point from which to build a reform agenda.
In the United States (US) today, many of these standing debates about justice reform, which have been dominating the airwaves over the last 30 years, are being replaced by much more fundamental questions about the criminal justice system – even its abiding assumptions and main aims. We appear to be poised at a time of transition, in which the justice system our children will inherit may look very different from the one we received from those who went before us.
It is within this context of deep shifts in justice thinking that the idea of a ‘Big Society’ can be best understood. The phrase is a sound-bite, of course, seemingly designed to make attractive an agenda that calls for a smaller governmental role in justice. But in the area of criminal justice, the logic of a ‘Big Society’ joins a larger rethinking of justice that has been gaining momentum for a while, now.
In the US, this shift began with the police. With crime on the rise nationally in the 1970s and 1980s, and with public concern about safety skyrocketing, a series of studies concluded in various ways that traditional policing had little or no public safety value (for a review, see Skogan and Frydl, 2004). Facing this mounting evidence of a profound need for change in police philosophy and practice, ‘community-oriented policing’ was born. Within a decade, it was the norm in police agencies to be ‘community-oriented’ (Morabito, 2010).
Of course that simple description is a vast over-simplification, obscuring a great deal of heat and noise that accompanied the shift in policing. There were many ‘versions’ of a new paradigm of policing in play: problem-oriented policing, environmental crime prevention, targeted policing, and so forth (for a review see Scott, 2000). Many bore scant resemblance to the original rationale for community policing. But the core theme of the revolution in policing should not be lost in its details. It would be something like this:
Leading thinkers and practitioners in policing came together to confront the hard fact that a solid body of evidence questioned their traditional methods. In response, an ethic of innovation and experimentation fueled a new generation of ideas for policing that has dominated the police agenda for three decades. A combination of creative energy at the top, firm commitment to grounding police actions in data, and a new willingness to discard that which does not work in favour of that which does now characterize the best in the field. At the core of all of it is a new recognition of police accountability to the public for results, not just for crime control, but also for quality of community life, writ broadly.
Today, no self-respecting police chief heading a department of any decent size operates under the old patrol-respond framework. There are too many good options for ‘smart’ policing, tailored to fit a wide range of departments, to justify sticking with the old way.
The courts have also been changing. Beginning two decades ago, with the advent of the Midtown Community Court in Manhattan (Center for Court Innovation, 2012) people began to question the hegemony of the traditional criminal court and its adversarial roles. There were many reasons to think outside the usual framework about the courts, and the process of rethinking the courts has matured along a trajectory quite different from that of the police. In part, this has had to do with the inherent conservatism of courts systems, dominated by standard legal practice, often carefully litigated. Some also has to do with the stakes involved. Neither the defendant nor the state finds it easy to risk the unknown of a reformulated way of doing work. Indeed, that courts have changed at all, given the inherent resistance to change, underscores how attractive new ideas have to be – and how strong the dissatisfaction with the status quo – before they are tried.
Today, the court system looks little like it did a few years ago. There are drug courts, community courts, and problem-solving courts dotting the landscape, providing alternative ways to process criminal cases. Most remarkably, there is a vibrant movement for ‘restorative justice’, a self-conscious alternative to adversarial, punitive justice. To be sure, the combined caseload of these new forms of courts is but a fraction of the total criminal justice workload (Porter, 2011; Porter, Rempel and Mansky, 2010). But the mere existence of these courts attests to the readiness for change in the adjudication arena. The continuing pace by which new courts are being developed – and new specialty areas (such as reentry courts) proposed – is evidence of the depth of change possible here (Hamilton, 2010; Maruna and LeBel, 2003).
The corrections portion of the system has been last to arrive at a readiness for fundamental changes. By the 1980s, the tired ‘debate’ between punishment and rehabilitation no longer had much traction. The belief in the utility of a punitive model for penology seemed unrelenting, and little energy existed for ‘programmes’ or ‘services’. Scholars such as Francis Cullen (Cullen and Gilbert, 1982) and others wrote persuasively about the value of rehabilitative programming, but they were lonely voices, and the audience was largely empty.
In the last decade or so, that has begun to change. The advent of ‘evidence-based programming’ has brought a new emphasis on correctional strategies that seek to change the behaviour of people who have broken the law. But the most stunning development has occurred in regard to incarceration policy. In the US, every year since 1972, the prison system has grown in size – during rising crime and while crime was falling; during good economic times and bad; while there was war and when the nation was at peace. At the time of writing, however, the US has chalked up its second consecutive year of dropping numbers in prison; small drops, indeed, but drops nonetheless (Glaze, 2011). More to the point, all the imaginative penal policymaking now taking place in the states shares a goal of shrinking the size of the prison population. A nation once proud of its burgeoning prison rate now seems determined to bring it down.
What is going on here? Where does the impetus for this deep rethinking of criminal justice come from? I think there are four main sources for this new energy for a reconceptualized justice system. They are:
Research on the traditional system: by far the most important source of support for such a deep rethinking of criminal justice is the cumulative impact of multiple decades of research about its practices. There have been three major themes of results of these studies. One is that many – perhaps most – of our most cherished reforms are ineffective. The second is that many of our standard practices have unanticipated consequences that are substantially undesirable. Third, much of what we have learned about the nature of criminal behaviour runs contrary to assumptions underlying many of the traditional criminal justice strategies. The best example is provided by the way research on replacement and co-offending has explained much of the limited power of higher incarceration rates to reduce crime (see Andresen and Felson, 2010).
This is, of course, not uniformly true for the research base about crime and justice. To be sure, there has been a growing foundation of ‘evidence’ about crime policy that can guide the selection of strategies. But for the most part, the evidence points away from old practices and sets the groundwork for new strategies that are not widely adopted within the field. This has had two consequences for the direction of criminal justice. First, there has been a decline in the credibility of traditional methods across various sectors of the justice system. Second, there is an empirical foundation for rethinking the way forward.
Popular sentiment: the old way of doing business in the justice system has very little popular support among much of the general public. Many people do not have faith that the system is fair; many doubt that the system is effective. They are cynical about the justice system, a feeling that often translates into unwillingness to cooperate with justice system officials. There seems to be little public energy for maintaining the status quo in justice system practices.
For many years, public discontent about the justice system expressed itself through a deep fear of crime (Dowler, 2003). But what we have today is different from the previous dynamic that fueled a generation of ‘law and order’. In those days, there was a shared sense that the justice system was simply not capable of being ‘tough’ enough. Today, there are residual doubts about the capacity of the justice system to carry out credible threats against people who break the law, but there is more. Many people find the system irrational, uncaring, and unresponsive to common sense. Public doubts are as broad as they are deep.
Expert agitation: the intellectual leadership of the justice system seems ill-at-ease with many of the main tenets underlying traditional justice approaches. Of course, the most highly visible leaders within the justice system will always defend publicaly the value of criminal justice as a contribution to civil society. But increasingly, among the leaders of the justice system, when they talk to each other, there is a sense that things need to change.
Justice system leaders have thus placed a premium on making changes in the justice system. Some of this comes about as a result of the evidence-based movement now dominant in the field. To the extent there is a premium on ‘evidence’, there is pressure to innovate, to find new ways to be more effective. A result of this dynamic of innovation is that the most high profile leadership in the justice system tend to be voices for change. This has underscored the underlying sense that new methods need to be tried and old methods need to be questioned, partly explaining what feels like a foundation of dissatisfaction with the current way of doing business.
Innovation in other sectors: there is a great deal of new thinking going on in areas outside the justice system. Technology is changing almost everything about the business world. Governmental borders and industrial boundaries are extraordinarily fluid. Market leverage in the private sector often requires innovation and, for many industries, staying competitive requires continual change.
Innovation that takes place outside the justice system inevitably influences thinking among justice system leaders. When new ideas gain currency in the non-justice sector, innovative expert leaders quickly translate them to fit the justice system. This has been the case for innovations that come about in other government sectors, but it has been especially true for innovations from the private sector (Bouché and Volden, 2011).
These four themes have resonance for the rhetoric of the ‘Big Society’, which eschews incrementalism in favour of radical realignment. The public imagination is presented as aligning with demonstrated evidence in favour of not simply ‘change’, but a whole new arrangement. This vision promotes a strong private sector preeminence over the public sector prerogatives, a premium on local control instead of professional standards, and a cold regard for results. To the extent the ‘Big Society’ has long-term prospects, its elements fit well with the upheaval already happening in thinking about criminal justice.
These major shifts are underway in the justice system. They are well down the road in law enforcement; the penal system and the courts have lagged behind. I think this shifting sand reflects a profound disquiet with the way the justice system serves the people. The criminal justice implications of the ‘Big Society’ fit well into this trajectory of disquiet about the past emphases of the system. Whether these ideas will stick or not is a story for the future. But the fact is that the ‘Big Society’, in proposing a new version of justice, is consonant with a pre-existing broad desire to rethink the foundations of a justice system. It gains certain threshold credibility, partly because it is a new paradigm promulgated during an era in search of fundamental change.
Footnotes
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