Neil Hutton

Beyond populist punitiveness

Much of the survey data on public knowledge and attitudes to sentencing and punishment gathered over recent years have suggested that the public in western jurisdictions support harsher punishment and have diminishing confidence in the criminal courts. The results of research on the same issues using focus groups, deliberative polls or other methods which provide more information or allow respondents to discuss their views with others, appear to suggest that these punitive attitudes become more moderate as well as more complex and contradictory. Recent research in Scotland has produced similar results. What do these results mean? Are the public punitive or not? The argument presented here is that punitive attitudes exist alongside more rational and more reflective attitudes. Part of the explanation for this is that attitudes are, at least in part, an artefact of the methodology used to discover them. This does not mean that they are not real and substantial, but rather that public opinion is much more nuanced and contradictory than it appears from survey research. This interpretation raises different challenges for political leadership and policy making.

Risk, responsibility and reconfiguration: penal adaptation and misadaptation

This article draws on the findings of an ethnographic study of social enquiry and sentencing in the Scottish courts. It explores the nature of the practice of social enquiry (that is, of social workers preparing reports to assist sentencers) and explores the extent to which this practice is being reconfigured in line with the recent accounts of penal transformation. In so doing, we problematize and explore what we term the ‘governmentality gap’; meaning, a lacuna in the existing penological scholarship which concerns the contingent relationships between changing governmental rationalities and technologies on the one hand and the construction of penality-in-practice on the other. The findings suggest that although policy discourses have, in many respects, changed in the way that these accounts elucidate and anticipate, evidence of changes in penal discourses and practices is much more partial. Drawing on Bourdieu, we suggest that this may be best understood not as a counter-example to accounts of penal transformation but as evidence of an incompleteness in their analyses which reflects the ‘governmentality gap’ and requires the development of more fully cultural penology drawing on ethnographies of penality.

Assisting and Advising The Sentencing Decision Process: The Pursuit of 'Quality' in Pre-Sentence Reports

Pre-sentence reports are an increasingly prevalent feature of the sentencing process. Yet, although judges have been surveyed about their general views, we know relatively little about how such reports are read and interpreted by judges considering sentence in specific cases, and, in particular, how these judicial interpretations compare with the intentions of the writers of those same reports. This article summarizes some of the main findings of a four-year qualitative study in Scotland examining: how reports are constructed by report writers; what the writers aim to convey to the sentencing judge; and how those same reports are then interpreted and used in deciding sentence. Policy development has been predicated on the view that higher-quality reports will help to ‘sell’ community penalties to the principal consumers of such reports (judges). This research suggests that, in the daily use and interpretation of reports, this quality-led policy agenda is defeated by a discourse of judicial ‘ownership’ of sentencing.

Decision support for sentencing in a common law jurisdiction

The inherent variability of each new conviction and the volume of potentially useful data complicate the provision of relevant information to judges carrying out sentencing activities. This paper describes a prototype sentencing information system which allows a judge to retrieve previous examples of sentencing behaviour by interactive instantiation of detailed templates. The case-based advisory system uses a direct manipulation interface to facilitate user interaction, The direct manipulation interface was well received and judges found that they were rapidly able to construct meaningful queries and retrieve appropriate data despite having limited prior experience of computer use. We identify the importance of dynamic query systems in relation to further development of applications of this type.

From intuition to database: translating justice

The article tells the story of the development of a Sentencing Information System for the High Court in Scotland from its genesis as an exploratory research project to its final implementation in the court. The article uses Actor Network Theory to understand how the database was assembled through the social practices of academic researchers, government officials, judges and court officers. It offers a corrective to theories which exaggerate the de-humanizing effect of information technology and argues that an Actor Network Theory approach is not incompatible with an understanding of how institutionally located power operates through social practices.

The end of an era? - youth justice in Scotland

Scotland is a small jurisdiction, yet it has a distinctive criminal justice system with unique institutional arrangements and certain political and legislative structures, which render it academically and politically interesting. Unlike other jurisdictions which have adopted neo-liberal policies, Scotland remains committed to a welfare state ethos that is expressed in the continuing commitment to social work with offenders and the welfarism of its youth justice system. The Scottish youth justice system is based on a core set of welfarist principles which stem from the work of the Kilbrandon Committee which reported in 1964. A key strength of the Scottish system is that it has thus far managed to avoid the more punitive and incarcerative aspects of other jurisdictions (most notably England and Wales), yet some recent policy and legislative developments that have impacted on the management of young offenders and the delivery of justice can be seen to pose serious challenges to the core Kilbrandon ethos.

Visible and Invisible Sentencing

This chapter starts from the premise that the sentencing decision-making process should not be understood simply as decisions by individual judges but as a form of collective action involving the work of other actors, human and non-human. The chapter then looks at the evidence we have of these decision making practices and concludes that while some sentencing work is visible, mainly through the documents produced for the case file by police, prosecutors, social workers and others, much sentencing work remains “invisible”. This has important implications for how discretion should be understood. The traditional legal understanding of discretion conflates an empirical account of decision making practices with a normative account of these practices. The chapter argues that these need to be distinguished and that discretion should be understood as a mode of justification rather than as an empirical practice. A decision justified by the claim of discretion is based on trust in professional knowledge and expertise. This is necessarily invisible. Decisions justified by accounts of rule-following or the completion of a template are public and visible. Sentencing decisions are justified by a mix of visible and invisible work. The balance between those and how they are distributed in the collective process of sentencing, are matters of political choice.

Book Review: Making crime count

of control such as strip searching, handcuffing, and drug testing. The closed and inaccessible character of prisons makes them difficult institutions to regulate and control, particularly when the general public perceives prisoners as ‘coddled’ or undeserving. The articles that focus on ‘current issues’ consist of discussions of privatization, the criminalization of poverty, the impact of the war on drugs on women, racial discrimination and the disproportionate impact of get-tough approaches on Black women. In general, these contributions put emphasis on accountability, transparency, reflexivity and human rights. George, for example, argues that private corporations engaged in punishing for profit are difficult to monitor. Shaw argues that the media, while instrumental to reformers and in ensuring prison accountability and transparency, is also susceptible to misrepresentations and to favoring official versions of events. Women leaving prison for the community face a number of challenges and carry many burdens; in general, the literatures on women prisoners do not adequately engage with this issue. The focus tends to be on women in prison and not on what happens to them upon release. For those who are imprisoned for several years and sometimes decades, release is even more daunting, and by and large their reintegration needs are neglected. To their credit, Davis and Cook develop the themes of neglect and accountability in relation to prisoner reintegration. They argue that straightforward interventions, such as ensuring that released women have safe and affordable accommodation and money, are absolutely critical to survival and success in the community. The profound impact of incarceration on the lives of women is captured in this statement: ‘you can never leave prison because prison never leaves you’ (p. 287). In terms of the book as a whole, it is a valuable introductory text for readers who are largely unfamiliar with the politics and struggles of imprisoned women and their advocates. More advanced audiences, however, may desire a more comprehensive analysis of the gendered nature of local penal cultures and of the relationships of both persistent and emergent patterns in women’s imprisonment to wider penal trends and theoretical debates. Nevertheless, the book’s objective is to identify and explore common themes and feature a diverse range of issues in multiple countries. This framework is both its strength and weakness. The very fact that this book in the year 2002 restates many familiar and age-old themes of exclusion, lack of accountability, oppression, neglect and frustration is a testament to how little things have changed in practice. It also demonstrates how wide the gap continues to be between mainstream penal scholarship and scholarship that reflects the gendered and to some extent racialized aspects of the politics and practices of punishment. Kelly Hannah-Moffat University of Toronto, Canada