Moving beyond the criminal justice reflex

Will McMahon
Monday, 31 March 2014

At the Centre we have been thinking about the Justice Matters for quite a while now – and as staff, trustees and members we all have reached more or less the same point but often from different directions,  and we are still in a process of discussing it and talking it though.

Because we try to be an open and collaborative organisation we don’t always speak with the exactly the same voice but we do share a common view of the broad problem and want to work through what some solutions might be.

One thing we are certain about is that something has gone badly wrong in a society that has become more and more reliant on criminalisation and that something needs to be done about it that goes beyond reforming criminal justice as it stands.

The second thing we are certain about is that we will need to work with others outside of the Centre to make progress.

There is a lot of working out to be done. 

That sense of working things out goes for the initiative as a whole and if there is one thing I would want you to take away from this event it is that the Centre wants the Justice Matters to be a collaboration of many organisations and individuals based on a broad common understanding of the problem and a common search for alternative ways of doing things.

So I hope part of today is about you telling us about what brought you here – that might be one good a place to start the discussion as any I think.

Speaking for myself there are many ways I got here but there are three in particular:

First, my policy and projects background, which was partly in children’s social policy: I used to work for the Child Poverty Action Group and after that the Forum on Children and Violence at the National Children’s Bureau. The conclusion I drew from both experiences is that there is quite a lot of harm going on out there – both of structural  and interpersonal – but that from where I was coming from criminal justice was almost irrelevant – it barely scratched the surface on both structural and inter-personal violence.

That work left me asking a set of interlinked questions:

  • Who is being harmed and victimised in society?
  • Who are they being harmed and victimised by and why? And
  • What can we do about it?

That led me to applying to work at the Centre – and I came with a social policy rather than a criminal justice background.

The second issue was that when I began working at the Centre almost a decade ago now it slowly became clear to me that criminal justice is not doing the job we are led to believe it is doing on a very broad front, not just for children. In fact its failure in dealing with societal harms of all sorts was so obvious in so many different ways it was, frankly, mind boggling to me.  

This train of thinking was summed up in the pamphlet Right for the wrong reasons written by Richard Garside as long ago as 2006. 

Right for the wrong reasons points out that:

  • the government significantly underestimates the scale of failure of the criminal justice system because the true scale of victimisation of serious offences are not acknowledged;
  • the vast majority of some of the most serious and violent harms never end in the successful conviction;
  • it is clear that the criminal justice system is never likely to have anything but a marginal impact on levels and rates of harm.

Right for the wrong reasons suggested that rather than pursuing a hopeless quest to drive up the conviction rate we should be taking seriously the social and economic causes of seriously harmful behaviour and that the real challenge lies in a much broader array of social and economic changes than the criminal justice system can ever deliver.

Now at the Centre we have been thinking of the meaning of that pamphlet and the challenge it posed for quite a long time in one way and another and it was one of the ways that we arrived here: Justice Matters is a way of trying to answer that challenge.

The third reason why I arrived at Justice Matters was because of the work of two other colleagues

Rebecca Roberts and Helen Mills worked on a project we titled Reform sector strategies, that led to the publication Reducing the numbers in custody: looking beyond criminal justice solutions, published in early 2012.

Perhaps I should say at this point that although I am referring to my own work, Richard’s work and now Helen and Rebecca’s work they all owe a lot to the publications and thinking of many other people, practitioners, academics and policymakers – we have draw on and learnt a lot from wide resources to help us develop Justice Matters.

Of the two main things I got from Reducing the numbers in custody  the first was the academic work showing that industrialised countries with high rates of inequality also tend to have high rates of imprisonment – it is quite striking when you look at it. It is worth taking a look at the publication on our website to see the graphs showing the correlations.

The second point that really stayed with me was the description of the three ‘common narratives’ that are used by the criminal justice reform sector to explain what criminals justice reform is all about:

One is a ‘Crime Fighting’ narrative:

  • The crime problem can be better addressed by another criminal justice intervention than prison.
  • There are non-custodial measures which are more effective at reducing re-conviction.
  • ‘Tough’ community sentences are a way for people to pay back and are not a ‘soft’ option.

The second is a ‘Managerialist’ narrative that focuses on the financial cost of prison, money spent on prison could be better spent elsewhere:

  • Prison is not a good investment. There are cheaper options that are more cost effective from a cost/benefit analysis. Vicky Pryce’s book Prisonomics covers much of this ground.
  • An increased prison population is costly and puts the prison service under strain to maintain their regime and rehabilitative work.

The third is a humanitarian ‘narrative’ that:

  • Highlights the human costs of the high prison population.
  • Argues that high prison numbers and overcrowding result in prisons being less effective at rehabilitating people and result in poorer prison conditions.
  • Emphasizes that prison is not appropriate for specific ‘vulnerable’ populations such as children and women.

Now there are strengths and weaknesses to all of these narratives if you want to reform the system and different campaigns use a different mix of them. 

My reflection on them is that the focus seems to be on making criminal justice work better. Now there is merit to this. 

Last week I was at Grendon prison. It is the only prison in the country that one might describe as a psychotherapeutic prison, where the residents play a big role in both organising  their time on the wing and helping each other get to a better place.  I was talking to a prison officer responsible for a wing and she was telling me in passing how on her own initiative she had developed individual folders for residents on her wing that focused on their achievements while inside and that some had now used this to impress on the wider prison authorities the progress they had made. Now that is a micro-reform but it is an important thing in context.

I was at Grendon because we at the Centre are involved in a project with eight other European partners called the ‘European Prison Observatory’, which has as its main focus the improvement of prison standards across Europe and the drawing up of common standards of treatment.  So the Centre is involved in reform work itself.

For me Justice Matters is different to this kind of work. It is at the other end of the spectrum of the Grendon folder. It is about zooming out and looking at the whole picture, not just from the achievement folder or the prison wing to the prison or even a helicopter view of whole prison estate and the entirety of criminal justice.  

We are looking from very high up and asking how we move some of our work beyond a criticism and reform of criminal justice so that we can think practically about how we build policy and practice alternatives and transform what society does so that we don’t have the criminal justice reflex as a policy response and criminal justice plays a radically reduced role in resolving harms.

So Justice Matters hopes to be different way of proceeding that stands next to current reform sector strategies, not in competition with them, but does differs from them, and will provide a constant challenge.

The two page Justice Matters leaflet sums this up in the very last sentence of the first page where it says Justice Matters is about 'rethinking the entire configuration of policy and practice so that many current criminals justice responses are not require at all'.

Now I am working on the assumption that you have had chance to read this, but just in case some of you haven’t, in brief it outlines:

  • the large failure to resolve the distress experienced by those victimised that have led to people coming into criminal justice;
  • the damage that criminal justice causes to those caught up in it;
  • the inequality of impact of criminal justice;
  • how criminal justice has begun to crowd out more innovative, just and effective policy and practice solutions; and
  • how it simply fails to prevent the harms arising in the first place. In other words it is dealing with the bodies coming down the river rather than going to the source.

Even in that short pamphlet there is a lot to talk about.

Now 'rethinking the entire configuration of policy and practice so that many current criminals justice responses are not require at all' is big ask that is going to take quite a while.  It is more than the ‘challenging task’ or ‘stretching target’ of management speak.

So we will need to draw together policy and practice resources from outside of criminal justice that will involve not just whole systems thinking but whole society thinking.

Over the next two years we want to work with you and others in developing such resources and thinking. About how to:

  • fundamentally downsize criminal justice;
  • build policy and practice alternatives;
  • transform thinking about harm prevention and resolution and the usefulness of criminal justice in wider society.

As part of transforming thinking we will also need to begin to challenge ‘common sense thinking’ in our own minds and more generally. 

What often seems to be ‘common sense’ is more often than not simply the point at which we have arrived:

  • It represents a certain set of economic and political outcomes and relationships but also often only one view of society.
  • It is perhaps the view of those who feel they have won the policy argument for the time being  and are in charge of the policy implementation process.
  • The ‘common sense’ has become so generalised it feels like there is no alternative. In such a context ‘common sense’ can seem even like a natural state of affairs.

It can make thinking some things seem unthinkable because it can be sustained by:

  • the language and terms we use (e.g. the use of offender,rehabilitation, good and evil);
  • the myths that have been constructed (e.g. about ethnicity, drugs, poverty, police effectiveness);
  • even the buildings we have built, the employment that people have; and so
  • the actually existing material reality we experience on a day to day basis.

So the present weighs heavily on the mind when we are being asked to conceive of what might be another possible future.  

It is worth bearing in mind that while ‘common sense’ thinking might seem unchallengeable it is always just one point in history and is not immutable. For example, it is not so long ago that the unquestioned  ‘common sense’ of economic theory held that you did not offer banks or financial institutions a government bail-out as it presented a long run ‘moral hazard’. This piece of ‘common sense’ thinking evaporated with the collapse of Lehman Brothers in 2008. 

So there is a lot to be getting on with.

Since the start of the Justice Matters in July we have among other things:

  • put together the basic materials to explain the project – these can be found on the Justice Matters project pages;
  • published a regular Justice Matters bulletin;
  • begun to develop a dialogue with those outside the Centre to discuss the project;
  • developed the Justice Matters for Women initiative that Helen will talk about in a moment; and
  • have been asking people for their ideas about what part of criminal justice they would give up. Perhaps you might want to add your own?  You are welcome to email it to us. If you’re on twitter you can also tweet your idea with the #justicematters hash tag.

To address two questions, among others, that you might have in your mind:

  1. What does being a partner mean, how might collaborating work?
  2. How is the Justice Matters initiative going to be resourced?

The answer to the first is: 'let’s see'. We are right at the start of the initiative but what we know is that if it is to having any effect at all then we will need allies from all parts of society including but stretching far beyond criminal justice.

  • In the first instance it might mean that if you are interested in the initiative we can work with each other, and at some point you agree to being a Justice Matters Partner.
  • It would probably mean that you broadly agree with the argument in the pamphlet and the website.  And the word broadly is very important. We are not saying dot and comma – there is probably not a member of staff, trustee or anyone in the Centre's membership who could say they agree with 100 per cent.
  • It might mean that we develop an initiative together that aims to impact on a specific area of social or economic policy or practice that you or your organisation have a particular concern about.
  • Or you might want to get involved in a particular initiative that is already up and running. We have one of those at present – Justice Matters for Women – that has its own event in a couple of days that we know some of you are coming to.

So there will be lots of ways of developing partnerships and working together, most of which we have yet to think of and you may have better ideas about than we have. We are hoping that lots of people will be coming to us and saying ‘have you thought about X or Y or Z?’

So how are we going to resource the initiative?

  • We have a commitment by the Centre of  significant staff time and outputs for the next two years at least.
  • We hope that through collaboration other organisations will be able to bring resources to the table that will help magnify the impact that we can have.
  • We will be looking to funders to support the whole initiative or parts of it.
  • And we will be asking individuals to do the same: make small or large donations to support the broad initiatives or specific aspects of Justice Matters that they most concerned about.

Of course, the most important resources will be what our partners bring will be all the learning, experience and thinking that they have got.

Our hope is that we can share a passion for creating a fundamental challenge to the role of criminal justice in our society and that through collaboration over time we can have a significant impact on policy and practice.

If you want to keep in touch with the Justice Matters initiative you can subscribe to regular updates here.