Reflections on ‘tough but intelligent’ criminal justice

By Andrew Henley

In David Cameron’s speech on prisons he has insisted that criminals can be punished and rehabilitated at the same time. In calling for what he claims is a “tough but intelligent” approach to criminal justice policy, the Prime Minister (perhaps unwittingly) re-ignites some interesting debates about the social purpose of the prison. Is it a place of punishment or a place or rehabilitation – or both? Can it meaningfully fulfil both purposes, and indeed, should it even attempt to achieve two potentially conflicting objectives simultaneously?

My initial reaction is that Cameron’s speech has merely added to the existing confusions which exist in the public imagination regarding what prisons actually do to those contained within them. They are cast both as facilitating ‘tough sentences’ (for the PM “retribution is not a dirty word”) but also as a site of reformation which will have a “positive impact” on prisoners. Yet neither Cameron, nor any of his recent predecessors or their ministerial appointees, has offered any indication of what the right balance of punishment and rehabilitation actually looks like. Indeed, how are prisoners themselves supposed to make sense of a criminal justice system which seeks to simultaneously inflict ‘pain’ upon them in various forms (by restricting their liberty, imposing various material deprivations on them in the name of ‘security’ and by limiting their contact with family and friends) whilst also attempting to affect in them forms of positive self-change (by addressing offending behaviour, tackling drug or alcohol addictions and teaching new skills). Does not the prisoner’s experience of the punitive elements of incarceration fundamentally undermine its supposedly reformative parallel objectives? And if so, are the more retributive aims of imprisonment either necessary or appropriate?

Cameron’s insistence on ‘tough sentences’ is certainly indicative of a strongly-held political belief in punishment – indeed, he was insistent that criminals both “deserve and need” punishment. And yet whilst claiming that he was not going to outbid other politicians on toughness, I managed to count twenty uses of the word ‘tough’, ‘tougher’ or ‘toughen’ in his speech (and four more ‘tough’s for good measure in answer to the first question). In delivering his speech, Cameron certainly sounded, or intended to sound…. tough! Yet, if we are to equate ‘toughness’ with ‘punishment’ and ‘punishment’ with ‘pain delivery’, then how are we to know when we have reached what Michael Ignatieff referred to as 'a just measure of pain’ in our criminal justice interventions?

Sadly, the detailed answers were missing from Cameron’s speech as to how the competing interests of punishment and deterrence (the tough bits) might be balanced against the need to reform and rehabilitate individuals (presumably the ‘intelligent’ bits). One can only assume that the PM sees punishment itself as in some way reformative, since in acknowledging the importance of a much-vaunted ‘rehabilitation revolution’ he described the justice secretary, Chris Grayling’s ‘driving mission’ as being “to see more people properly punished, but fewer offenders returning to the system.” Cameron went on to say: “To achieve that, we’re saying to charities, companies and voluntary organisations – come and help us rehabilitate our prisoners.” One can only assume, therefore, that this proposed outsourcing of the traditionally state-managed criminal justice objectives signals not only the further deterioration (or extinction) of the National Probation Service, but also a leading role for both corporate interests (G4S anyone?) and ‘Big Society’ providers in delivering the punishment/rehabilitation complex.


Andrew Henley is a PhD student and Graduate Teaching Assistant in Criminology.

What is honour?

The Iranian and Kurdish Women’s Rights Organisation (IKWRO) recently published data collated from 39 police forces across England and Wales indicating that at least 2,823 incidents of so called ‘honour’-based violence occurred in the UK in 2010. This term has now come to personify a variety of violent acts that are perpetrated – primarily against women – as a result of deep family and community connections to Izzat or ‘honour’. This collective ‘honour’ is seen to act as social capital – simply put, individual and collective social status – which, like any other asset, must be secured and protected. Subsequently, as ‘honour’ is generally held within the sexuality of women and their reproductive capabilities, violence is often regarded as both a necessary and justified method by which to control the freedom of women. Yet despite the fact that violence in the name of ‘honour’ is neither a new phenomenon nor an exclusively Islamic practice – indeed the practice is thought to predate any written religion – today within the UK it is increasingly being represented as an ethnicised strain of violence against women, perpetrated by Muslims and sanctioned under Islamic law.


Problematically this representation, in conjunction with an increase in immigration and the terrorist attacks of 7/7 and 9/11, has arguably led to a rise of what Edward Said referred to as “cultural othering” of Muslim communities. Indeed, despite the fact that Muslims are not a heterogeneous group, the Muslim man is now typically portrayed as the ‘deviant other’ whilst the Muslim woman is the ‘passive victimological other’ in need of rescuing from her brutal and oppressive culture. Subsequently, whilst the government has recognised the need for action against the practice of ‘honour’ violence, such responses have arguably been created against a monolithic depiction of both the impact of ‘honour’ on Muslim women and of the needs and experiences of those who have been victims of HBV in the UK – something reflected in the distribution of minority ethnic specific women’s services. Subsequently whilst ‘honour’ violence is predominantly managed as a gendered issue within ‘mainstream’ domestic abuse policies which are, to a large degree, ethnically blind, it has also become incorporated into multicultural policies which are essentially gender-blind – an indication of a legal and justice system which struggles to facilitate difference.

Nevertheless, as the result of a wider shift from multiculturalism to civic integration, the UK remains focused on implementing tough criminal justice provisions against such violence – evident in the governments’ recent announcement that forced marriage will become a criminal offence by 2013. Yet it is questionable to what extent imposing Westernised criminological ideals is appropriate for responding to minority group problems. Indeed Dr Aisha Gill from the University of Roehampton suggests that such an approach may conversely act as a barrier for victims seeking help. Consequently by focusing on Muslim communities within a rural context – something largely ignored in previous studies, over the next three years I shall be exploring this complex issue further. By moving away from the traditional victim rhetoric that often dominates studies surrounding ‘honour’ violence, and by positioning Muslim women at the centre of the research, my PhD thesis endeavours not only to explore the meaning of ‘honour’ and its impact on the lives of women (victims and non-victims) from within these communities, but to determine the availability and appropriateness of current provisions in place for responding to such violence, and the viability of alternative responses such as the integration of Sharia Law.



Samantha Walker is a PhD student and Graduate Teaching Assistant in Criminology.

What is the Right of Discriminate?

By

Mark Featherstone

On Friday morning Nick Griffin, leader of the BNP, was interviewed on Radio 5 about his twitter posts concerning a court ruling against a landlord who refused to rent a room to a gay couple. Speaking on Nicky Campbell’s Breakfast Show, Griffin explained that British people have a ‘right to discriminate’. But what is this ‘right to discriminate’? Does it exist? Should it exist? Let’s think this through.

Essentially, Griffin sought to oppose the idea of a right to discriminate to the traditional British idea of tolerance. Here, we tolerate or accept other people, even though we may not agree with them, and it is this that makes society possible. This is the case because it is only on the basis of my acceptance of or respect for other people’s difference that I can ensure other people’s acceptance of or respect for my identity. Here, we find the basic principle of a liberal, democratic, pluralistic society, or we might say, a multicultural society, where I affirm other people’s right to their own identity. By contrast, if I refuse to tolerate or accept other people, it is likely that they will refuse to tolerate or accept me, and society will essentially become impossible. This would be the logical result of a society with a universal right to discriminate - enmity

What if, however, the right to discriminate was not universal, or democratic, and only some people held this power? This would change things. In other words, if we say that my right to discriminate against other people trumps their right to discriminate against me and that I somehow hold the essential power to discriminate then society could continue because I would essentially be setting or defining the rules of discrimination. Here, I have the power to decide. Here, I am dictator.

The political theorist who presents this argument, and best embodies Griffin’s logic, is Carl Schmitt, the German legal thinker, and member of the Nazi party until 1936, when he was ousted for his apparent careerism. In Schmitt’s work, the essence of politics resides in the ability to decide, and discriminate, between insiders and outsiders. Of course, Schmitt, the follower of the British thinker Thomas Hobbes, knew that not everybody could hold this power. If everybody could discriminate, and decide between their own insiders and outsiders, and essentially make their own law, then society would effectively disintegrate, and we would descend into civil war. Like Hobbes, who advanced the importance of the figure of the Leviathan, Schmitt argued that what was required to effectively organise society was a dictator. Somebody would have to make decisions, to decide between insiders and outsiders, and discriminate between friends and enemies.

While Schmitt made this decision, the supported Hitler and the Nazis against the background of post-crash Weimar Germany, Griffin champions authoritarianism and the right to discriminate in the context of early 21^st century democracy which seems similarly bankrupt and exhausted in the wake of economic collapse. This is why we should be concerned about Griffin’s ideas today. He is voicing them under conditions where they are likely to find a receptive audience. In other words, people listen to the politics of enmity in difficult times.

Yet even if we were to accept these ideas morally, they seem totally unrealistic because without dictatorship they would lead us towards a kind of non-society of enemies. In this warfare society, I refuse to tolerate, accept, and recognise you, and you do the same to me. We end up at each other’s throats. This is civil war, which neither Hobbes nor Schmitt could tolerate or accept. Clearly, then, the only way the right to discriminate could really work, even if this is what we desired, is in an authoritarian society. But how likely is this today?

Unfortunately, it is more likely than ever since the 1930s, because of the economic crash, recession, and current austerity measures. If we need evidence of this, we only need to look to contemporary Greece, where the extreme rightists, Golden Dawn, have gained mass support in the wake of the collapse of Greek society. This is why we should be on guard against the extreme right today because they stand poised to take advantage of social decay, collapse, and resentment caused by austerity.

Of course, the truth is that even if we went down this immoral, violent, road the rightist principle of enmity would solve nothing because capitalism and economy remains the key expression of discrimination today. In our society the principal form of discrimination is not some stupid, poorly articulated, hatred of people on the basis of their personal attributes, although we must, of course, guard against this, but rather the capitalist logic that separates, and sorts, us into winners and losers as a result of our accidental position in the economy.

It is this violent calculus which has excluded the old white working class come underclass who make up the core of Griffin’s support from normal society, as well as everybody else who finds themselves living in the merciless precarious world of contemporary capitalism. Against this decaying system, which has led the resurgence of the extreme right across Europe, I would suggest that what is required today is a turn to the left, and a left which can solve the problems of the market, rather than a toothless left which refuses to manage the economy or a new rightist politics of discrimination. Against the society of enemies, I suggest we need a society without the principle of discrimination, where nobody has the right to discriminate or exclude anybody else on the basis of the peculiarities of their identity or accident of birth. 

The mark of conviction

By Andrew Henley

Michel Foucault remarks in Discipline and Punish that “it is the conviction itself that marks the offender with the unequivocally negative sign”. In the UK, the National Policing Improvement Agency recently stated that there are currently 9.2 million people on the Police National Computer due to a previous conviction for a recordable criminal offence. This staggering statistic equates to roughly one in three men and one in five women in the working age population. The information held by the police on convictions, in addition to other data such as arrest records and ‘soft intelligence’, has been increasingly available for disclosure not only in areas such as employment but even in applications for housing, financial services and travel visas. Having a ‘criminal record’ is therefore hugely problematic for a very sizeable number of people.

Whilst the process of desistance from crime has been shown to involve a distinct shift towards a pro-social identity, being publicly labelled an ‘ex-offender’ will evidently have a conflicting impact on a reformed individual’s sense of self. The labelling of ex-offenders can often be fuelled by media constructions of criminality which can generate negative and stereotypical social views of ‘the offender’ or the ‘ex-con’ which are infused with notions of ‘dangerousness’ or ‘unreliability’. The implications of such crude labels are exacerbated for people with previous convictions by the political climate in which they occur. David Garland has described the gradual abandonment of a more welfare-oriented approach to correctional criminal justice policy in both the UK and US and a move towards a ‘culture of control’ in the late-modern or ‘risk’ society. This culture, he claims, places the risk management and containment of ex-offenders as the new objective of penal policy rather than the successful restoration and social reintegration of such individuals. This trend of ‘othering’ can also be evidenced within contemporary political discourses whereby the ‘safety of the law-abiding majority’ and the ‘rights of victims’ are often invoked to marginalise concerns over the welfare and treatment of ‘offenders’ and - perhaps by extension - ‘ex-offenders’.

In this climate, a criminal record has therefore been likened to a stigma but to date the ‘mark of the conviction’ to which Foucault referred has remained relatively under-researched in the UK when compared to other possible areas of criminological inquiry. My PhD research at Keele University is intended to help address this academic shortfall. Over the next three years, I will be conducting interviews and case studies with members of the award-winning charity UNLOCK, the National Association of Reformed Offenders. The charity campaigns for greater equality of opportunity for people who have not only served their sentences but crucially have committed themselves to living a life free from crime in the future. I will be exploring questions such as how the stigmatising effects of previous convictions might manifest themselves in everyday social relations and how this impacts on people in terms of their sense of self and emotional well-being.

For a broader look at issues relating to desistance from crime, readers may be interested in the documentary The Road From Crime, funded by the Economic and Social Research Council and George Mason University. 


Andrew Henley is a PhD student and Graduate Teaching Assistant in Criminology