Abstract
Boone and Maguire’s volume focuses on breach procedures, defined as ‘the processes that start with the perception of behaviour as non-compliance by a supervisor and that continue all the way to a final decision to modify the original sentence’ (p. 5). This book constitutes the final chapter of COST Action IS1106, ‘Offender Supervision in Europe’ (2012–2016). In particular, it reflects the work of the Decision-Making & Offender Supervision working group, which I initially co-chaired with Miranda Boone. Although I unfortunately had to give up my chair, I was relieved to see that my position fell into the very capable hands of Niamh Maguire.
This review cannot therefore be fully objective as I have shared many intense brainstorming sessions with the book’s editors and many of its authors. It must be understood as being a form of a posteriori catch-up contribution to the working group’s fascinating enterprise.
I shall not go into a detailed description of the book’s content both for fear of being too descriptive and because I truly want readers to take the time to study it, rather than limit themselves to a descriptive summary. There is simply too much depth and too many layers to this volume for a superficial skim-read.
I nonetheless have to say a few words about its structure. After an initial introduction by Boone and Maguire, it is divided into two parts. Part A consists of six chapters, including a conclusion. Part A deals with essential issues such as procedural issues, and to a lesser degree, normative issues, fairness, and questions of roles, professionalism and discretion. These chapters are theoretical, but they also include some level of comparison between various European jurisdictions, along with a focus on European law. Part B comprises a more traditional, and therefore more descriptive, list of chapters pertaining to no fewer than ten jurisdictions.
It is truly remarkable that the editors and authors have managed to make sense of 10 legal systems, which required them to hold rather intense discussions on language and procedural phases. The book refreshingly makes the conscious decision—which is not necessarily followed through by all the authors—to use continental law labels such as ‘convicted person’ and ‘supervised person’, which are more neutral than the classic Anglophone term ‘offender’. The book greatly benefits from this initial reflection on a common language. It also benefits from a vignette study, which was conducted by the COST-decision-Making group and presented in greater detail elsewhere (Maguire et al., 2015).
I hope my readers and the authors of the chapters in Part B can forgive me for limiting my comments to the more analytical Part A and for leaving out the conclusive summary in Chapter 6, for fear of writing far too long a review and spoiling the book for the readers.
Part A starts with a chapter by Morgenstern, Murillo and Ravagnani (with the help of Zaniboni). This chapter focuses on fairness from a European law perspective. I strongly agree with the authors’ expressed concern (p. 30) with the tendency to use the vehicle of European recommendations to draft professional guidelines, and thereby more or less to forget about their main goal: human rights. Such guidelines, along with the excessive focus on non-binding recommendations, puts far too much discretionary power into the hands of executive authorities, and contributes to their natural tendency to consider due process and judicial oversight as being cumbersome. I certainly see my fair share of this problem in my own jurisdiction (France), with aggravating factors such as the extreme underfunding of criminal justice programmes, a constitutionally enshrined lack of a true separation of powers (where the executive dominates the legislative branch and judiciary power is not recognised), hyper-centralised state agencies, efficiency confused with efficacy (with nonsensical managerial targets), and a form of managerialism that, in fact, boils down to the management of grinding poverty. Put simply, and perhaps bluntly, the Council of Europe fails democracy and vulnerable justice and probation service users (notably offenders and victims) with, among other things: its new venture into professional guidelines; its focus on non-binding, yet expansive and overlapping recommendations; its lack of inclusion of the sentence’s execution phase in its due process and normatively humane framework (e.g. via a binding additional protocol to the ECH convention); and its lukewarm, casual and therefore indecipherable jurisprudence, which, in essence, states that apart from a few exceptions, due process does not apply to sentenced people.
Chapter 2, by Blay, Boone and Pruin, focuses on parties, roles and responsibilities. It provides a very useful comparative typology of how seven European jurisdictions procedurally structure their breach procedures and decision-making, and particularly which authorities play a role (e.g. probation officers, prosecutors and courts).
Chapter 3, by Beyens and Persson, analyses discretion and professionalism in the context of procedural breach as an invisible freedom, with a social, penological, institutional and historical framework. Contrary to Hucklesby et al. (in Chapter 4), Beyens and Persson seem rather favourable to discretion and mostly unhappy with managerial constraints driven by punitive objectives. Perhaps the editors should have invited the authors of Chapters 3 and 4 to hold more discussions in order for their analyses to be more closely attuned. Assuredly, even though the essence of discretion is to be ‘the hole in the doughnut’, as Beyens and Persson put it, there are in fact two ways of reducing it, both being poles apart ethically. On the one hand, there can be attempts to reduce fairness in the form of national standards for managerial and punitive purposes, which produce no benefits to justice service users, offenders, or the society at large. On the other hand, there are democratic boundaries to institutional and individual discretion that one finds in the quasi-sacred principles of normative legality and of procedural due process. Normative and procedural boundaries, which constitute the result of centuries of legal reasoning and historical struggles for democracy, result in win-win gains for human beings and society in general.
The professionalism argument, according to which it is far too often assumed that practitioners are the good guys who mean well and who therefore can safely be left to do as they please, is unacceptable in a democracy, particularly when decisions are made for vulnerable parties, as is the case in breach procedures.
Moreover, as Hucklesby, Maguire, Anagnostaki and Cid argue in Chapter 4 by aptly linking breach issues with both the legitimacy of justice and compliance literatures, where there is no fairness, there is no compliance. I find the arguments in Chapter 4 most consistent with the work I have conducted since the mid-1990s in the French context (starting with my PhD thesis in 1994, following in the footsteps of Levasseur (1983)), both for its core message (that the sentence’s execution is similar in nature to sentencing and that due process rules should fully apply) and for its vivacious tone.
It has always been my view that the outdated notion that there would be a cut-off point, to which Boone and Maguire refer in their volume, after a sentence has been passed, and before its execution, and therefore, that sentence’s execution is ‘administrative in nature’ is the prehistoric artefact of an era when offenders were not considered citizens; they were only treated as such during trial, because at that point in the criminal justice process, there was still the possibility that the accused could be declared innocent.
I am not as convinced of Hucklesby et al.’s concept of ‘responsive breach process’ because it is limited to issues of breach. It is my view that breach is one issue amongst many that belong to a larger sentence implementation phase of the penal continuum. Moreover, I feel that the authors have fallen short of integrating this phase, as well as issues of ethics, human rights and due process within criminological frameworks (Herzog-Evans, 2018; see also Birgden, 2004; Ginsburg-Kempany and Kaiser, 2017; Kaiser and Holtfreter, 2015). Treatment and law are not separate entities. Nor is one the pastry and the other the hole (and may I be excused for paraphrasing this interesting metaphor). The same individuals are processed into a penal continuum where norms, procedures and treatment are applied with similar goals (including deterrence, rehabilitation and desistance, and preventing new offences from being committed). Whatever the phase of the criminal justice process people are in, they have the same need for efficacy, respect, care and due process. Human rights, the right to a fair trial, and evidence-based treatment, good institutions and good professionals must combine to provide what works. Scientists must work more diligently to ensure this happens, and for this, they need to provide measurable theoretical frameworks.
With the progress of modern techno-scientific criminology (e.g. risk assessment), it has become more imperative than ever to mix ethics and efficacy and, therefore, to dispute institutional discretion and sentence implementation agencies’ untouchable status on the basis of two essential pillars of democracy: normative and procedural justice.