While waiting for This Week to start, I channel-hopped my way to the ‘highlights’ of a Lords debate on BBC Parliament. (I told you Brighton, my home town, was notorious for partying.) The focus of the debate was Law and the Big Society: something that resonated with the recent talk given at the RSA by the excellent Larry Sherman, and with my own interests in restorative justice (I helped to establish New Cross Gate in South London as a ‘restorative community’ some years ago).
The debate was wide ranging, covering the representativeness of the magistracy (improving, but still poor); court administration (too slow, and with uneven access to and use of technology); and public faith in the justice system (variable). Much of the debate, however, focused on the relationships between community and the criminal justice system and the purpose of sentencing. Broadly, what is the relationship between the law and the idea of the Big Society?
Several of the contributors pointed to the magistracy, celebrating its 650th anniversary this year, as perhaps the first example of the kind of voluntarism and localism that is at the heart of the notion of the Big Society. But how can the magistracy (and other local administrations of justice such as restorative approaches and the forthcoming neighbourhood resolution panels), contribute more to the development of the Big Society, particularly given the public scepticism around community-based sentences?
Lord Patel, admitting his lack of enthusiasm for and understanding of the term ‘Big Society’, saw it is a model of social inclusion, but he focused only on inclusion within the magistracy and the need for the administration of justice to be delivered by and reflect all constituencies within a community.
Lord Thomas built on this theme, remarking that order is preserved in a community not by the police, but by the people. He pointed to work done by the Centre for Criminology at Oxford (with whom the RSA is researching co-production in recovery from substance misuse), which points to co-production as the central principle of the Big Society. According to the work, communities have very little engagement with the courts and “live in two separate worlds”. On the one hand, communities were disappointed with the level of engagement from magistrates, while on the other, magistrates worried about their judicial independence in building strong relationships with community stakeholders. The research concluded that courts have yet to embed principles of community justice, seeing their role as “adjudicators of fact and meters out of punishment and no more”.
If the law and the Big Society are to be mutually reinforcing, “community engagement and problem solving in partnership with community groups and agencies should become a formal, standardised part of a magistrate's training and part of continuing professional development for existing district judges and magistrates”.
Baroness Seccombe argued that the Big Society means ”bringing decision-making back to communities so that local people have a real stake in running their own lives and supporting those who need a helping hand so that they can improve their lives. It means giving people the opportunity to bring colour and happiness to others less fortunate than themselves, while at the same time experiencing the genuine pleasure that can be had from joining a group of people who get things done, so contributing to a thriving community. The Big Society is where we can all help each other as we try to do our bit to promote local well-being.”
If the law is to be in part a driver of the Big Society, what scope is there for the criminal justice system to foster group collaboration, the inclusion of marginalised people, and thriving communities?
Community sentencing seems an obvious first place to look. Community sentences often include ‘community payback’, which focuses on unpaid work such as removing graffiti, clearing public areas/wasteland, or decorating public places and buildings such as local community centres. Such sentences have undergone changes in recent years: the renaming from community service to payback emphasises the focus on punishment, and the enforced wearing of high-visibility jacket emblazoned with ‘Community Payback’ aims to improve public confidence in community sentences and increase deterrent and shaming effects.
Are we missing a trick to make sentencing more socially productive?
But are we missing a trick to make sentencing more socially productive? In visibly marking offenders as ‘other’ and by focusing on payback activities that mean offenders work in isolation (either individually or only with other offenders), are we limiting the rehabilitative potential of such sentences? The RSA’s Connected Communities programme has explored the ways in which our relationships influence our attitudes, behaviours and opportunities. Our work on recovery from substance misuse, for example, shows how those who use drugs problematically are caught in social networks in which most, or in many cases all, of the people they know and/or receive support from are other drug users.
Given this kind of example, can we use sentencing to widen the constructive social connections of offenders and provide the possibility of more positive social influence? Rather than separating off offenders, can they undertake ‘payback’ that is equally demanding and useful, but that requires interaction with the parts of their communities from which they are removed?
Social sentences’ speak to restorative models of justice, and encourage ‘reparation’ agreements that tap into victims’ desire for wrongdoers to make amends in meaningful ways
Such ‘social sentences’ speak to restorative models of justice, and encourage ‘reparation’ agreements that tap into victims’ desire for wrongdoers to make amends in meaningful ways. Examples might include helping to organise and put on community events, working on specific tasks for voluntary groups, assisting with community organising, helping with consultations and so on. Such examples might be particularly effective where sentences involve a relatively high number of hours work that enable sustained interaction and influence.
Norwegian criminologist Nils Christie argued some 35 years ago that conflicts belong to the people that are involved in them and that in transferring ownership of them to the state and courts, we ‘steal the conflict’ and remove communities’ opportunities to resolve them directly and the benefits that might result in doing so. Even in restorative practices, and in prescribing (or directing) the kinds of reparation wrongdoers might make in community payback, we still limit the social benefits and rehabilitative power of local resolutions.
In a Big Society model of locally administered justice, the balance between punishment and rehabilitation, and how each is delivered, should be for communities and victims to determine, within the wider legal framework. And of course, we have to take care to respect victims’ wishes, and ensure social sentences do not cause problems and burdens for those assisting in carrying them out.
In the Lords’ debate, Baroness Miller felt that the “possibility of rehabilitation is a very worthy objective, but one which perhaps all too often does not work. Community service orders are regrettably inadequately staffed and funded and sometimes consist of futile lamppost-counting operations.” Social sentences make the possibility of rehabilitation in the community more practicable; provides more meaningful activities to be carried out in the sentence; and provides more capacity for administering the sentence.
Such options can be applied through the magistracy (which deals with over 90% of all criminal cases), neighbourhood resolution panels, and other restorative mechanisms. In fact, there is the possibility of developing more socially productive sentences through existing means. Community payback currently offers the opportunity for local people to nominate work/projects. So go on, nominate a social sentence, and let me know if you are successful.
Of course, other readers may just want to nominate people whose company or conversation feels like a (different kind of) social sentence. I can feel my colleagues exchanging knowing looks already...