Tuesday, 8 December 2009

Name and Shame: Some Reflections on Restorative Justice

With the recent call for naming and shaming defeated when it was brought as a proposition by Deputy Trevor Pitman, it is perhaps time to take a closer look at young people, crime, and the notion of shame as in restorative justice, and how it differs considerably from Trevor Pitman's idea.

The 2003/2004 British Crime Survey found that a degree of anti-social behaviour was more a matter of perception than fact. The most commonly experienced form, the survey found was "young people hanging about". It noted that this is more how they are perceived by others, than any real criminal intent:

...much of this consisted in them 'being loud or rowdy on the street' or just 'being a general nuisance'. The authors of the study note that it is debatable whether the latter should be described as a problem and confirm that in 36 per cent of incidents, respondents who perceived there to be a problem, acknowledged that the young people concerned were 'not deliberately being anti-social'.(1)

Sean Hier, in an article in Theoretical Criminology, places the perception of young people as disruptive in the context of Stanley Cohen's ideas about moral panic.

In Cohen's assessment, every moral panic has its 'folk devil': a person or group of people, a condition or episode, onto whom (or which) public anxieties are projected. For Cohen, 'folk devils' are susceptible to recognition as 'unambiguously unfavorable symbols'(2)

Cohen studied the 1960s mods and rockers phenomenon, and found that there was a complex chain of social interactions, which involved people making claims about young people's behaviour, those who saw themselves as self-appointed moral guardians of society, and the media, who also raised the level of panic, with fear associated with random crime, and the risk of being a "potential victim" , and general anxiety over unruly teenagers and inattentive parents.

The scaremongering statistics in the JEP, are an example of this. They often display a rise in youth crime as a startlingly large percentage - because it is a rise in very small numbers, and not as a percentage of young people themselves, or crimes per member of the population. These headlines often fill the front pages, and suggest that youth crime is making the Island a dangerous place.

Hier sees how these "volatile moralizing discourses" alter public perceptions, while not really addressing problems of youth crime, or attempting to understand why it occurs, instead just blaming young people and their parents. As an example of that, he cites the the "Name and Shame Campaign" in Britain, presented in the News of the World as representing an extreme form of this rhetoric; locally, of course, we have Deputy Trevor Pitman.

What kind of young people do commit crimes? This can be seen in the Youth Justice Board for England and Wales which published an initial evaluation of the Intensive Supervision and Surveillance Programme (ISSP) undertaken by Oxford University. This was:

a rigorous form of intervention involving a minimum of 25 hours a week contact in the early stages of the programme with additional surveillance, most commonly in the form of an electronically monitored curfew.(3)

It is perhaps unfortunate that Jersey has recently opted, as a cost cutting exercise, to phase out electronic curfews and monitoring, when rather than it being used in general, it could be used for young offenders in particular as long as it was also linked to a programme of intervention.

The survey also reveals the kind of offending, and the general background. While it is simplistic to blame the actions of a criminal wholly on environment, it is certainly clear from the kind of social background of the offenders that most came from the poorest sections of society, and unless the social roots of crime are tackled, there will continue to be a fertile soil for learning criminal behaviour.

The evaluation confirms that ISSPs have successfully targeted serious offending with the most common current offences leading to referral to the programme being burglary or robbery. In addition, it is clear that young people involved are characterised by multiple disadvantage. Nearly half were recorded as living in a deprived household; almost 60 per cent had been or were involved with social services  departments; 30 per cent were thought to have experienced abuse; 9 per cent were known to have attempted suicide; and 15 per cent were deliberately self-harming. The average reading age for young people on the programme was five and half years below their chronological age.(3)

It is perhaps pertinent to comment that the "blame and shame" campaign often also focuses on parents who should be punished by society for not controlling their children. This demand is usually made by people who do not have teenage children themselves, or whose children have long grown up, and who believe that the old fashioned "virtues" of the 1950s approach - spare the rod and spoil the child - can still be applied today. They are living in the past. Parental control today, if that is the correct term, with a fifteen or sixteen year old, is a matter of consensus, negotiation and persuasion, and the skills required for success are much more demanding than the simplistic solution of applied violence. In fact, physical abuse of teenagers to control them is more likely than not to introduce them to idea that violence is a commonplace, and strength lies in being violent. Those who are abused, often learn to abuse others.

The survey shows that the result was a mixed success, as the programme was not always completed, but where it was, there was a clear reduction in reoffending, and a shift towards becoming productive members of society.

Around half of young people failed to complete their programme for one reason or another, and almost a third of those breached for a first time received a custodial sentence. Where the programme was completed however, the evaluation found statistically significant levels of positive change across all of the risk factors measured by ASSET except substance misuse and mental and emotional health.(3)

Part of the reason for failure was the limitations on curfew, and it was thought likely that the duration was too short to be effective. Consequently, changes have been made, and it will be interesting to see if this improves the outcome:

Schedule 2 to the Anti-Social Behaviour Act 2003 extends the maximum length of a range of requirements which can be attached to a supervision order from 90 to 180 days. The legislation also increases the maximum duration of a curfew order, for a child under the age of 16 years, from three to six months. (Six month curfew orders are already available for young people aged 16 years and over.) The intention behind the legislative change is to allow ISSPs to be made for 12 months in place of the current maximum of six. Guidance issued by the Youth Justice Board for England and Wales indicates that the longer programme will comprise four months' high intensity (minimum 25 hours contact a week), two months' medium intensity (minimum 15 hours per week) and six months' low intensity.(3)

Returning to the issue of "Name and Shame", Melissa Lonergan sees this as trying to balance the needs for society to be protected against the opportunities for the criminal to be rehabilitated back into society. She asks:

What are the implications for offender rehabilitation and reintegration, if the public is unwilling to accept someone who has already breached societal bonds, 'back into the fold'? ...This conundrum is evidenced by the pre-eminence of the 'name and shame' debate. The question remains whether a balance between community protection and individual rehabilitation can be achieved, or if punishment and rehabilitation are mutually exclusive goals (4)

Which brings me to the area where "shame" is used, but in a quite different context to the public moralising on young people. The West Yorkshire Probation service has piloted a scheme based on Braithwaite's ideas about "restorative justice" for a mutually voluntary mediation between victim and offender. The authors of a report on this, Jane Wynne,  and Dr. Imogen Brown, explain how this works:

Braithwaite's' concept of reintegrative shaming has provided a theoretical base for the practice of mediation. This concept was developed following observations of the family group conferencing programmes based on traditional Maori justice, where victims and offenders, their families and supporters, met together to discuss the offence and its effects on their community. Offenders are held accountable and encouraged to feel shame, but the aim of conferences is to resolve conflict caused by the offence rather than inflicting punishment.(5)

'Shaming is a more effective sanction for unacceptable behaviour than punishment, provided that it does not
impose rejection and stigma for its own sake, but comprises measures which reintegrate the offender back into the community. (5)

This has been applied in the Leeds scheme, and notice that the shame involves two parties, the victim, and the offender, but not the public at large.

In the Leeds scheme, mediation is defined as a process of communication conducted through a neutral go-between, which allows victims to express their needs and feelings, and offenders to accept and act on their responsibilities. There is a continuum of possibilities for contact between victim and offender: from exchanges of letters and information, or audio and video tapes, to face-to-face contact.(5)

The aims of the Leeds Scheme are simple, but profound:

To offer an opportunity for voluntary mediation to victims and offenders;
To challenge offenders with the results of their offending behaviour;
To involve victims in the criminal justice process;
To influence the criminal justice system to become more restorative.

Participation is voluntary for both parties, but rather than gaining acknowledgment of their hurt by "having their day in court" as William Bailhache put it recently, it allows the hurt to be acknowledged directly, as the offenders come to see what the results of their crime have been:

Through participation, victims acquire information about the progress and outcome of the case; can get answers from offenders; have their hurt acknowledged; and negotiate some form of reparation, if appropriate. Offenders come to understand and accept the real impact of their behaviour in terms of harm or distress caused to others; and can try to make amends by apologising or through reparation. This may act to change their offending behaviour, and make them feel better about themselves; it may also assist with reintegration into their local community. (5)

The voluntary nature is important, unlike the "name and shame" campaigns. This does require the offender to want to enter mediation, and it might be thought unlikely that they would. But in fact, a number do want to participate:

Mediation must always be voluntary for both parties. It would be quite easy for a skilled mediator to push either victim or offender into taking the process beyond the level at which they feel comfortable, but the result would be dissatisfaction or eventual non-compliance with the process. West Yorkshire Probation Service's assessment of success includes participants' satisfaction with the process. In mediation, neutrality means treating people with equal respect. This is not to deny guilt on the part of an offender, but rather an acceptance of that guilt and of the offender's wish to repair harm where possible.(5)

This is not just talk; there is also sometimes a request for reparation to be made, so there can be a cost to the offender to not only acknowledge the offense, but to do something to try to repair the damage caused:

Sometimes victims have a specific request for reparation: a sum of money to compensate them for loss, or a specific piece of work to be undertaken by the offender. Experience has shown that reparation required by victims in serious cases is often at a more personal level. Victims want to know that their offenders accept responsibility for their behaviour and its outcome. The most requested reparation often seems to be assurance from offenders that they will change their behaviour. However, in some cases, financial reparation of even relatively small amounts can be important to victims and has to be negotiated. The smallest amount given to a victim has been £5, and the largest amount £25,000 in a case of theft from employer. The mediator usually
supervises any practical work agreed. If voluntary financial compensation has been agreed, the mediator will personally deliver it to the victim.(5)

The conclusion of the report is that this is an alternative which may well not apply in cases where offenders or victims do not want to take part, but where it has been used, both parties have in fact been pleased with the outcome, victims especially so. It is an attempt to break the cycle of crime, and the distancing of the crime from the victim of that crime:

The usual criminal justice process is one of public humiliation and shame. Where mediation differs is that offenders are offered a way to put the offence behind them by doing something to help their victim, and thus feel better about themselves. Whilst it is painful for offenders to hear about the effect of their behaviour on their own victims, that pain is acknowledged and offenders are praised for doing something so difficult on a voluntary basis. The personal recognition by each party helps break down stereotypes but, more importantly, offenders can no longer pretend that no-one got hurt or the offence is 'just a job'. The mediation work done properly helps to reintegrate offenders back into, rather than alienate them from, their communities.(5)

(1) 2003/2004 British Crime Survey
(2) Sean P. Hier, Thinking beyond moral panic: Risk, Reponsibility and Politics, Theoretical Criminology 2008; 12; 173
(3) Youth Justice News, Tim Bateman, Youth Justice, Dec 2004; vol. 4: pp. 220 - 230.
(4) Probation Journal 2006; 53; 85, Melissa Lonergan, Options for an Insecure Society
(5) Probation Journal 1998; 45; 21 Can Mediation Cut Reoffending? Criminology and Criminal Justice Research, Alternatives to Prison: Jane Wynne, Co-ordinator of the Leeds Victim/Offender Unit, and Dr. Imogen Brown, Research and Information Manager in the West Yorkshire Probation Service

1 comment:

Anonymous said...

The problem with the British Crime Survey is that it's very selective about how it measures crime - which is why the Labour government have often been quick to cite it as the benchmark point of reference.

For example, to quote the BBC on this topic, the BCS "doesn't cover drug offences, sexual assaults, murders, fraud or crimes against under-16s." And the survey's data tends to relate to convictions, not offences.

So it's a great resource for those who wish to show the "sunny side" of crime, rather than the complete and grimy reality.