The twenty first century has certainly been legislatively active regarding equality and diversity. This is, in part thanks to the efforts of Labour Minister Harriet Harman. That everyone, regardless of gender, race, age or creed, should be treated with fairness and respect is an accepted truism of our times. These principles have been enshrined in the 2010 Equality Act. Therefore one would hope that the probation service will embrace the prevailing zeitgeist by providing a service worthy of our current legislature. In other words, it should aim to do justice to diversity and difference and the subject of this essay will now be explored.
Let us ask ourselves the question “what does the term “difference” imply? The word implies that certain groups are different from the norm. In other words women, older citizens and ethnic minorities are deemed to be sufficiently different from the norm as to require legislative protection from discrimination by it. The norm is presumably epitomised by a white male patriarchy. Is this white male patriarchy omnipresent in our judicial system? Yes, indeed there is evidence to indicate that our judicial courts of law are replete with Justices from a comfortable background of privilege and wealth, and predominantly of the white male genre. This realisation has propelled some criminologists along an investigatory path to ascertain whether minorities are receiving a fair trial (Hood 1992) or in the case of women a courtly chivalrous trial (Allen 1987).Indeed the question of how the entire criminal justice system treats women and minority groups is a large and possibly vexatious one.
The enigmatic judicial logic of the Magistrates court sometimes sentences defendants as flawed women rather than as lawbreaking citizens (Carlen & Tchaikovsky 1996). A wealth of literature describes this judicial bias against women (Bohn 1997). Magistrates are often swayed by the prevailing sentencing culture of the bench. In other words the sentences they mete out may be the result of whim and whimsy and do not uphold the principles of justice. This inherent bias may result in harsher sentences meted out to those from a less privileged back ground than the Magistrates or Judge. Women who transgress unrealistically high societal expectations may be labelled as doubly deviant wicked women in need of reform (Bottoms 1995; Gelsthorpe & Worrall 2009). Yet women tend to commit far fewer crimes than men in every field except for prostitution; the latter offence often driven by financial hardship (Carlen 2002).
The question of how the probation service should apply just and fair practice will be examined within the entire judicial framework. This judicial framework encompasses the courts, the police, the prisons and above all the probation service.
The Equality Act ensures that each and every one of us has a right to receive fair, impartial and neutral treatment. This premise of equality should be ubiquitous in the criminal justice system. Yet there are indications to the contrary. Women are often sentenced according to a judicial logic that sees them as fallen women rather than as perpetrators of minor offences. In Victorian England women who misbehaved were seen as needing moral protection (Zedner 1991) In Italy women may be either placed on a pedestal as a Madonna Virgin Mary, or are considered to be unworthy sinful women. This simplistic black or white thinking is a form of prejudice via stereotyping.
Human beings seem to be easily seduced by such facile thinking which requires little cognitive effort. It may be the case that people are fundamentally inclined towards an oversimplification of their environment. The desire to file everything and everyone in neat compartments or categories may appeal to an inherent sense of tidy order. However, it is precisely this kind of behaviour that inadvertently results in narrow minded thinking and prejudice. The word prejudice itself comes from the Latin word meaning to pre judge. In other words a judgement has already been made that has no foundation on the facts of the case or the person.
Numerous studies have shown how easy it is to be seduced by such lazy thinking. This tendency to label others as outsiders may result from any perceived difference to the self referenced “norm”. Once a person has been labelled as an outsider, it then becomes easier to see them as worthy of punishment within the criminal justice system. The labelling of perceived socially deviant non conformists has been discussed by numerous sociologists (Becker 1963).
The danger of such labelling is that those who are labelled may become deviant via the process of a self fulfilling prophecy (Merton 1995). Studies have shown how perceived expectations of behaviour may result in the actual behaviour occurring. For instance, if a teacher has positive expectations of a pupil, then that learner may indeed go on to achieve better than average results. Conversely if a teacher has negative expectations then the learner may under achieve in their school work. It is clear to see then, why negative expectations of a labelled subgroup may result in actual negative behaviour by that prejudged group. This is the self fulfilling prophecy in action. Those in a position of hierarchical power may find that it suits them to label as deviant those that may disrupt their status quo.
For example back in the swinging sixties the Conservative politician Enoch Powell made disparaging comments about “hippies”. The straight laced politician may have felt the long haired freaks presented a threat to his status quo with their free and open ideologies. Even worse was to come in 1968 with the infamous “rivers of blood” speech which aimed to incite racial hatred against immigrants. Enoch Powell delivered an impassioned speech warning that terrible dangers to the community would result and blood would flow in the streets, if immigration continued unchecked.
He was exhibiting a classic behaviour pattern of stereotyping groups of people into neat compartments. However each and every person is a unique and diverse individual. Therefore it is unwise to allot whole groups of people into a particular category (Allport 1958). Indeed there is now legislation to ensure that this does not happen in this country.
The situation is not so benign in other countries where a man may be executed for practising homosexuality. Today the new buzz words are equality and diversity. However the old ingrained habits of some reactionaries are hard to change as the recent spate of workplace litigation has shown. Employees have successfully sued for sexist comments. Some critics feel that the pendulum of political correctness may have swung a little too far in the other direction. This is illustrated by the recent case of a bottom slapping woman taken to court. The lady was reported for sexual harassment after allegedly patting a male colleague` s derriere in a friendly manner! This time the law lords decided that enough was enough and threw the vexatious case out of court.
There is no room for complacency however as statistics reveal that latent discrimination still runs deep within the criminal justice system. For instance, the rates of incarceration for women in this country appear to be rising dramatically (Ministry of Justice 2010; Martin et al 2009). This finding indicates that alternatives to custodial sentences are not being sufficiently used within the criminal justice system and that women are being unfairly sentenced. Sometimes magistrates may be reluctant to fine Mothers of children as they feel that they are taking the food from the mouths of hungry children. They may equally feel that hard physical unpaid work is unsuitable for the delicate feminine physique and may prevent a mother from caring for her child. Perversely and illogically this thinking may sometimes result in a custodial sentence being imposed!
Clearly the best solution would be to use a probation order that is tailored to the needs of a woman with children. Such an order would ideally be implemented to advise, assist and befriend the troubled offender. Many community orders are designed with the male offender population in mind and this fact should not surprise us since most offenders are indeed male. Statistics show that women commit substantially fewer crimes than men (Ministry of Justice 2010). Therefore there is a cogent argument for the closure of women` s prisons in line with the Corston Report (Corston 2007).
Jean Corston calls for a holistic woman centred approach that provides support for women offenders rather than punishment. She believes that most women offenders are in need of guidance rather than further punishment. Many women may be driven to offend as a result of long term abuse or domestic violence (Dobash & Dobash 1979).
Sometimes women are criminalised for poverty as when they are sent to prison for being unable to pay fines in breadline Britain (Pantazis & Gordon 1996; 1997). Often women are driven to offend by financial need. An example of this is when a woman prostitute is fined by a court for soliciting and she has no money with which to pay the fine. She therefore goes back out to work on the streets to earn the money to pay the court imposed fine. Thus a vicious cycle of reoffending is perpetuated by poverty. Such need driven offending is often in stark contrast to the masculine “doing gender” male offending behaviour. The “Saturday night is great for a fight” type of offending committed by testosterone fuelled men is in stark contrast to much of women` s offending (Messerschmidt 1993; 2000).
In contrast many women may offend out of necessity rather than for the thrill of it (Carlen 2002). Sometimes they fall victim to male coercion as in the case of perjury where a woman is persuaded to cover up for a boyfriend or husband. Some men undoubtedly enjoy a good brawl but most women are unhappy while offending. The Corston Report indicates that many women sent to prison have come from a background of deprivation and may have been brought up in care homes. Many have a substance problem indicating that they have become prey of exploitative drug dealers. The report emphasised the mental health fragility of many women offenders.
Sometimes women are trafficked by organised crime gangs to work as prostitutes. Therefore it would seem unjust to further punish these women by sending them to prison. The Corston Report highlighted the mental health fragility of many women offenders who may self harm in stressful environments such as prison. Clearly most women offenders are in need of support and this should be reflected in the probations service provided. Many of their offences pale into significance when compared with the corporate crimes of white collar criminals (Sutherland 1937; 1983; Box 1983; Punch 1996). Perpetrators of white collar crime may embezzle millions or even put lives at risk via negligence and escape censure (Reimann 1984). In contrast a woman may be dealt with harshly for being unable to pay for a television licence (Pantazis & Gordon 1996).
The aforementioned reasons make for a pressing case to adopt a soft touch approach when dealing with women offending. The most humane approach would be to use an “advise, assist, befriend” probation order as typified by John Augustus in days gone by. The one to one casework model is preferable for vulnerable minorities as it provides continuity of care and caring interpersonal relations. It would help teach good behaviour via pro social modelling (PSM) and positive reinforcement.
Sadly this style of probation is currently on the wane. Nowadays offenders are managed rather than befriended. They are quantified as parcels of risk to the insecure public and such dehumanisation may worsen their plight. What would the pioneering founder of probation, John Augustus think of this turn of events one may wonder? The “one to one” relationship between the probation officer and the offender is gradually receding into the archives of oblivion and a mire of bureaucracy.
This clearly is not a satisfactory situation. Instead of a friendly personal rapport with the probation officer an offender now has to deal with an impersonal cohort of officials. This managerialism will depersonalise the offender who now has become a package of risk rather than a person in need of assistance. It also might reduce job satisfaction for the service provider. The human interface is gradually disappearing under a mountain of paperwork and form filling. This cannot be satisfactory and indeed the outcome of such an approach may lead to defiance. A person in need of help may be passed around the various departments as in the game of pass the parcel. This is a real person` s life and should not be treated as a party game.
The emphasis today is insidiously shifting to one of quantifying risk to the public. A points system is used to quantify such risk ranging from a low number to a high number. There is even a misguided sense of status in the practitioners overseeing the higher risk numbers in their charge. Probation has become a numbers game. This use of numbers evokes a disturbing parody of the cult series of the sixties “the Prisoner” starring Patrick McGoohan. The Prisoner has lost his identity and become just a number. Once a person becomes dehumanised in this way it becomes much easier to mistreat them. There are inherent dangers to this impersonal numerical approach that typifies the casework management model.
The statutory provision to protect the public may result in the client assuming a heavy burden of risk. In 1984 the Home Office introduced SNOP (Statement of National Operations and Purpose). The aim of SNOP is to make the probation service more accountable and to provide an evidence base. This was followed by the introduction of the National Probation Service in 2001.The government understandably wants value for money.
In the case management probation model the service may be fragmented and disjointed because of the multi agency approach. The detached case manager giving orders from his lofty ivory tower may make mistakes regarding a client that he has little rapport with. The offender may be treated more harshly as a result and this will not facilitate rehabilitation. There is the possibility that women or minority groups might be placed in a higher risk group by mistake. This could occur because of latent prejudice. A form of uptariffing could occur within the probation service whereby a BME client is placed in a higher risk group than is warranted by the actual offence. This uptariffing of risk might occur for example if the client is deemed to come from an impoverished background (Raynor & Vanstone 2002).
Furthermore, is it wise to make extrapolations to minority groups from research that has been conducted predominantly on white male majority groups? (Gelsthorpe 2001).This question has been widely considered. There is a growing consensus that more research is needed on what works for women. Women may find it hard to comply with community orders, especially if they have children. They might then be labelled as being non compliant and further punished. One must always bear in mind that their crimes may have been constructed as such by a patriarchal and censorious society. These women may not be paragons of virtue but they may not merit the description of criminal either. A label of criminal may be used to assert the hegemony of the dominant ruling tier. Law may be seen as the normative structure of the dominant group that will always treat minorities harshly (Sellin 1938). Those in a position of power will be able to transform their cultural norms into laws of the land (Turk 1969). This will inevitably result in the minorities being unfairly discriminated against.
Therefore it is wise to build up a trusting relationship with the client from a minority group who may have already lost faith in human nature. By establishing a warm and trusting relationship, the client may learn new pro social skills. This may be the first time that the client has ever encountered such positive pro social behaviour. It may lead to a moment of self discovery (Cherry 2005; 2010). These new pro social skills will eventually enable the client to improve his or her behaviour in the future.
There is a great opportunity to affect a change in a person` s life choices by teaching pro social skills via setting a good example. This is not a difficult option to implement. A meta-analysis showed that a humane client focussed service is “what works” best for women (Dowden &Andrews 1999). All that is required is for the probation officer to act with kindness and to show good manners towards the client. This approach will provide legitimacy in the client relationship. Since the probation officer is now perceived to be a legitimate source of authority there is a greater likelihood of compliance.
Therefore there really is no place for penal retributivism in the rehabilitation of offenders. This may seem an unpalatable truth to many in the grip of moral panics ( Cohen 1972; Garland 2008).Yet it should be obvious that to turn the other cheek is preferable to the dictum an eye for an eye and a tooth for a tooth. Punishing a person will result in anger that may lead to extralegal behaviour and defiance (Becker 1963).
Penal populism may appeal to the insecure electorate but does the electorate really know what is good for itself? The revolving door of recidivism demonstrates that harsh punishment is not the solution to cure antisocial behaviour. Perhaps a gentler approach will yield better results. It does not always take a sledgehammer to crack a nut. Providing a supportive shoulder to lean upon may lead to a renewed trust in humanity. With this renewed trust in mankind may come new hope that the world is not such a harsh and uncaring place filled with malign authoritarian critics.
This realisation may lead to a reintegration back into society. An integrated member will then be likely to feel a sense of shame in future when doing wrong (Brathwaite 1989; 2001).This uncomfortable sensation of mortification may persuade the client that it is better to conform to societal norms. This is because he or she now feels a warm sense of “attached, involved, and committed belief in society” (Hirschi 1967; 1969). This client centred approach embraces the ideals of John Augustus and those who followed his footsteps.
These days the orthodox approach to probation has been superseded by a revisionist approach that may be drifting away from the original doctrine to “advise, assist and befriend” (Jarvis 1972). The early revisionists felt that offenders were moral degenerates whose souls needed to be saved from eternal damnation and hellfire. Even worse there was the Edwardian idea of the deserving and the undeserving poor implying that only a select few deserved assistance (Gard 2007).Nevertheless much credit must be given to the Edwardians for the introduction of probation as an alternative to custodial sentencing in 1907.
This was the age of the Liberal reforming politicians such as Asquith and maverick David Lloyd George, who was nicknamed “Merlin the Welsh Wizard” for his ingenuity and charisma. This radical Liberal set out to improve the lives of the poor and oppressed and became known as the people` s champion. Lloyd George, was a free unconventional spirit who bent the rules to get his radical reforms such as the Peoples `Budget, passed through Parliament and the House of Lords. Thus the Probation Act of 1907 became law to befriend and assist the oppressed. Other radical reforming philanthropists include Elizabeth Fry and John Howard, the namesake of the present day Howard League of Penal Reform.
These days there is a tendency to see a probation order in a more punitive light. Since 1991 probation has become a sentence in its own right (Criminal Justice Act 1991). The Inspectorate HMIP proposed a new slogan for probation in 2006.The zeitgeist is to “punish, help, change and control” (Raynor 2007). The early humanitarian ideals of John Augustus are slowly being usurped by the impersonal mechanics of public sector managerialism (Raine & Willson 1996). Since 1995 the caring social work component of probation seems to be insidiously retreating into the mists of time. In 1993 Michael Howard enthused that “prison works”. In 1997 came more forceful words such as “tough on crime, tough on the causes of crime” uttered by Tony Blair. Does this tough love approach work with women offenders or minority groups? There is evidence that what works for men does not necessarily work for women. This may be due to the fact that many community programmes are designed with men in mind. For example the OASIS programme was developed by a male ex offender. Therefore it may be biased towards the male perspective and not be suitable for women` s needs.
The client served by the probation service may feel that they have already suffered enough prior to being engulfed by the criminal justice system. This is especially likely to be the case with minority groups and women. There is plenty of evidence to suggest that minority groups have been unfairly discriminated against by police use of Stop and Search Laws (Ministry of Justice, 2008/9; Iravis 2010). Indeed following the Lawrence inquiry the police were branded as being “institutionally racist”. Institutional racism was a term first coined by Sir William MacPherson following police failures in the investigation of the tragic death of Stephen Lawrence (MacPherson 1999). It referred to a collective failure to provide an appropriate service to people because of their ethnicity (Phillips 2010).The Director General of Prisons Martin Narey warned that the prison service is institutionally racist in 2001 and proportionately more BME groups have died in custody (Phillips & Bowling 2002).
It has also been estimated that BME groups are up to eight times more likely to be stopped and searched by the police using anti terror legislation. Indeed the Archbishop John Sentamu, who is from Uganda, complained that he himself has been stopped and searched several times when wearing secular clothing. Dr. John Sentamu believes that he has been stopped by police purely because of his Ugandan heritage.
Back in the 1970`s the over use of hated “SUS” laws led to the Brixton and Toxteth riots in 1981.There is today a growing consensus that the anti terror legislation is still being abused by the police to target ethnic minorities. Under section 44 of the Anti Terrorism Act 2000 the police can stop and search anyone in a designated place on the merest hint of a suspicion. Any person the police might not like the look of may be searched under the pretext of national security. This has led to flagrant abuse of the powers by police officers.
In 2009 there were around 150 thousand searches carried out by over zealous police officers (Ministry of Justice, 2008/09). Tourists innocently taking photographs of iconic buildings such as the London Eye fell foul of the draconian legislation and many ethnic minorities were harassed. This led to widespread complaints by civil liberty groups such as Liberty. Following a test case by a complainant in 2010, a judicial precedent was set. Henceforth the European Court of Human Rights ruled that the powers of stop and search were being abused and therefore deemed illegal.
It is clear then that the minority groups are disproportionately targeted by the criminal justice system and therefore may arrive in greater numbers in the probation service. Once inside the net of the probation service ethnic minorities may be placed into a higher risk category than their criminogenic needs actually warrant (Calverley et al 2004). In other words they have been unjustly stereotyped. It seems profoundly unjust to impose a retributive order on an unfairly targeted and selected sample of the population. Such BME groups may already be nursing a profound sense of estrangement and grievance against the biased system that put them in such a position (Pitts 2009).They may have been stopped purely on the basis of ethnicity and subsequently found to be in possession of class B drugs. Yet it is widely reported that there is a culture of cocaine use among bankers in London` s square mile who may be less likely to be stopped if they are white skinned. This police behaviour contravenes the Race Relations Act of 1974 which was amended in 2003. Therefore many minority groups that have been apprehended may be nursing a sense of injustice that needs to be dealt with sensitively by the probation service. Since certain sectors of the criminal justice system have been shown to be institutionally racist it is incumbent upon the probation service to try and make amends. Thereby some sort of equitable redress may be provided to balance the scales of justice.
Is this the case today and does the probation service do justice for difference and diversity? This is a subject that warrants extensive investigation. Perhaps the focus could be shifted to examine the social milieu and cultural context in which the offending behaviour takes place (Raynor & Vanstone p.50 2002).This focus on the broader picture helps to contextualise and understand the individual client` s needs.
The Probation Inspectorate has already considered the problems facing minority BME groups (Her Majesty` s Inspectorate of Probation 2000) but there is always the danger that this area will be neglected. The relatively high percentage of foreign nationals in custody might indicate to us that the opportunity for a more lenient probation order has been passed over (Ministry of Justice 2008/09).
In 2006 a tragic racist murder occurred in Feltham Young Offenders` Institution that was facilitated by prison guards who had placed victim, Zahid Mubarak, in a cell with a violent racist (Dodd 2006). A Home Office report had previously indicated that prison staff in approved premises had not received sufficient anti racist training (Burnett & Eaton 2004). The foreign national and BME groups do not have an organisation comparable to the Corston Independent Funders Coalition to help them.
The Corston Independent Funders Coalition is a group of charities that aims to support women and divert them from custody.
In 2010 they announced £2 million for the women` s diversionary fund in collaboration with the Ministry of Justice. This funding will enable further provision of the one-stop shop services that help women with bail conditions and work with NOMS to find approved accommodation. The Women` s Centres Forum encompasses thirty eight diversionary projects for women in England and Wales. These diversionary community projects include one stop shops to assist women with substance abuse problems, domestic violence, homelessness and mental health problems. The Together Woman Project (TWP) also founded one stop shops for women across Yorkshire to assist them with every stage of the criminal justice system. In Bradford TWP runs alternative to custody orders. A high rate of compliance was found. This supportive and practical service is obviously “what works” with women.
A cost benefit analysis showed great savings may be made using intensive TWP support. It costs £2000 per year per person to run compared to the £40 000 a year for a prison place that may well drive a woman to self harm. It is important also to consider value for money in the probation service. In 2010 the London Probation Service provoked an outcry when it sent an e-mail to Magistrates asking that they impose curfews instead of probation to save money (Hope 2010).
A supportive and caring approach is clearly the way forward for vulnerable female offenders and may ultimately save money. The Revolving Doors is another charity that offers help for those with multiple problems who come in contact with the criminal justice system. The Time Out centre in Glasgow provides a lot of support to women addicts and aims to empower women (Loucks et al 2006). The Home Office has introduced a joined up multi agency approach to assist women known by the acronym WORP (Women` s Offending Reduction Programme). It makes more sense to invest money in community projects that serve to empower women and boost their self esteem.
It does not benefit women to drag them into the net of a punitive criminal justice system. The probation service is currently functioning in an impersonal and bureaucratic way. This will cause emotional stress to those dragged into it especially vulnerable women and minority groups. The consequences of being dragged through the CJS are harmful and cause distress to dependant children (Hilyard et al 2004).
A non treatment paradigm approach has been discussed by criminologists (Bottoms & McWilliams 1979; Raynor & Vanstone 1994)). Their approach is quintessentially based upon an edifice of respect for all people. Treat others as you would wish to be treated yourself. This is the basis for the non treatment paradigm. The aim of this gentle approach is to help with problems that have been identified by the client.
Another approach believes in the efficacy of cognitive behavioural therapy which enhances basic reasoning skills. This concept was invented by Aaron Beck who was influenced by behaviourists such as B.F. Skinner and his operant conditioning theories (Skinner 1984). Each of us can analyse our basic thinking patterns and try to reprogram destructive thoughts with Cognitive Behaviour Therapy (McGuire 2000). Reasoning and rehabilitation (R&R) are thinking skills that help prevent recidivism and were first studied in Canada (Ross & Fabiano 1985; Ross et al 1986). Learning to stop and think before impulsive acts may help the client to break ingrained destructive patterns of behaviour.
The conclusion of this essay is that there is still a lot of work to be done within the criminal justice system in order to comply with equality and diversity legislation. The probation service needs to treat minority groups with special sensitivity and compassion as they may have arrived there through misfortune and unfair police targeting. The impersonal managerialism of the service may alienate the client and result in non compliance. Therefore a supportive “one to one relationship” teaching pro social skills is preferable to the risk oriented management model. Women also benefit from community projects such as Evolve that serve to empower them. In these times of budget cuts it would be a great shame if the Home Office withdrew funding from such progressive community schemes.
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