Volume 10 Number 1 1996

ASPECTS OF THE CRIMINAL JUSTICE SYSTEM

Courts and the Poor, Christopher E Smith, Nelson Hall, 1991, 177 pages, paperback 14.99, 25.50, hardback.

Magistrates at Work, Sheila Brown, Open University Press, 1991, 160 pages, paperback 10.99, hardback 32.50.

Probation: Politics, Policy and Practice, Tim May, Open University Press, 10.99, paperback.

Mike Creedon
Durham University

The criminal justice system in England and Wales has come under increasing public scrutiny in recent years. The numbers of concerned voices has grown as evidence has emerged that the operation of criminal justice is not merely marked by isolated incidents of abuse and injustice but appears to be seriously flawed. Prison overcrowding and riots, the recent release of a number of long-serving prisoners whose appeals have only been considered after unpardonable delays, evidence of corrupt practices amongst certain groups of police officers, crime figures accelerating beyond the control of a government which has courted the 'law and order' vote, these are all indicators of a 'system' in crisis. It is no surprise, perhaps, that the criminal justice process is increasingly becoming the focus of academic research. Among them, these three books provide a wide-ranging study of the American system of justice which produces considerable evidence of systematic discrimination against the poor, and two pieces of original research into key components of the criminal justice system in this country: the Magistrates Court and the Probation Service. The studies in these last areas are timely contributions to the debate leading up to the implementation of the Criminal Justice Act of 1991 published in October 1992.

The study by Christopher Smith on the treatment of the poor in the American justice system, attempts to bring together accumulated social science and legal scholarship on the American judicial system in order to examine wealth discrimination in its operation. The study is an attempt to integrate scholarly research in the various stages of the judicial process to support the author's thesis that the American judicial system provides the poor with a raw deal. The opening chapter argues the premise that the American legal system is expected to be both politically neutral and to provide equal justice under law (the inscription above the entrance to the American Supreme Court. On this side of the Atlantic, the recent televised hearings of the Senate sub-committee into the appointment of Judge Clarence Thomas and the William Kennedy Smith rape trial suggest this is a rather perilous starting point. In addition to the ambitious nature of the task the author sets himself, there is also the thorny problem of definition. Several notions of poverty are offered. The official government poverty levels are rejected as inadequate, the author relying on the definition that refers to those groups who have inadequate resources to participate in judicial proceedings. The author's main argument is that the American judicial process is guided by the same factors as other political institutions, namely, the exercise of discretion, resource scarcity and exchange relationship. this argument is traced through successive chapters on criminal justice, civil litigation, administrative proceedings, Supreme Court decisions and judicial policy making.

Perhaps the most graphic research findings in the chapter on criminal justice concern the death penalty. In Florida most defendants sentenced to death were represented by court appointed attorneys, who were paid a maximum of $3500, compared with fees of $100,000 commonly asked by private attorneys. In addition, a recent Supreme Court decision restricts further appeals in such sentences by denying court appointed representation. In civil litigations, likewise, it is argued that the expense of litigation puts justice out of the reach of the poor. Experiments in Alternative Disputes Resolution (ADR), such as neighbourhood mediation initiatives, can often be manipulated by wealthier litigants, and in some cases are used by small business people as low cost methods of recovering debts from those less affluent groups the schemes were designed to assist. Even schemes specifically targeted at redressing the inadequacies of legal representations for the poor, such as the 'pro bono' system, where advocates are expected to give a proportion of their time to unpaid service to the less affluent, are shown to be an inadequate and unenforced response to a system without any legal aid scheme such as that which operates in Britain. Even at its highest level, at the Supreme Court, participants are shown to represent and advance the interests of prevailing political parties and the affluent in society. Unlike other minority groups in the American system, the poor lack a coherent voice. They lack visibility and political representation.

Comparative analysis of judicial systems in other Western countries and in formerly Communist states point up some of the unique features of the American system. Its constitution gives the judiciary co-equal status with other branches of government. The three elements of judicial interpretation of the Constitution, the common law system, and the process of judicial review, give American judges a unique authority which, it is claimed, they operate in a partial way that reflects prevailing ideologies. These international comparisons are cursory and give little insight into the relative treatment of the poor in other countries. Interestingly, the author examines the shortcomings of the British Legal Aid scheme and rejects it as a model for tackling America's problems. An interesting comparison is made between American and West European use of imprisonment: American sentencing is typically marked by concerns of punishment and deterrence (the median sentence exceeds 8 years and 17% of prisoners serve more than 20 years). This is thought to reflect the greater crime rate in the USA, the higher public sensitivity to crime, and the greater use of hand guns in pursuit of crime. In 1983, 35 people were killed by handguns in Japan, 8 in Britain, 27 in Switzerland, 6 in Canada, 10 in Australia and 9,014 in the USA.

In his concluding chapter, the author identifies the lack of political will or resources to tackle the fundamental inequalities in the American judicial system. While gross disparities in access to wealth, power and education remain, any attempt at partial reform is unlikely to be effective.

This is a readable and informative study of a neglected area of discrimination in the American judicial system. Its central theme might strike a sympathetic chord with those interested in critically examining the British system. There must be some reservations, however, in its relevance for British readers and practitioners, as the two systems operate in such different ways. The book's ambitious intention, to integrate social science research on the issue of wealth discrimination, does not seem to be fully realised. In an attempt to be wide-ranging, the author confuses definitions of the 'poor', and his attempts at comparative analysis with other countries is somewhat disappointing. On the positive side, however, debates on the issues of the death penalty, bail reform and legal aid will be informed by material in this book. Overall this study does hold up an interesting, if somewhat limited, mirror to the British legal system. Ultimately, the author's conclusion that injustice, like the poor, will always be with us, while vested interests hold sway, seems unnecessarily despondent and it would have been useful to have identified areas where change and reform were both feasible and practicable.

The second book reviewed is an original and thought provoking study by Sheila Brown on the processes that come into play when Magistrates pass sentence in court. The book is based on a research study in six English courts in the North and North-East. It aims to place the 'social information question' at the centre of the debate about juvenile justice. This is an examination of the exercise of power within and outside the courtroom. It demonstrates how the individual is reconstructed as a 'case' and, as a result, becomes amenable to control. The first chapter examines how social information, as a result of successive legislation, has become a central concern of juvenile courts. A review of the recent literature highlights the paucity of studies on social information: those which have considered it have concentrated on the provision of information by social workers and probation officers in social inquiry reports (SIRs).

These typically have trheir own perceptions of magistrates and indeed the wider issues of social information. The research attempts to enter the everyday world of magistrates as they make sense of the information presented to them, and to look at how they re-contextualise it in a process of selection and filtering. The author illuminates this process with a series of verbatim extracts from her interviews (which are one of the helpful features of this study). They illustrate very effectively the process by which the variety of social information - the SIR, the school report, solicitors' mitigations and the presentation of the defendants and their families - are all amended through a process of translation: a process which ultimately translates social data into control factors, and thus justifies the development of a sentencing tariff to identify and discipline the unruly. The chapter on the way information in SIRs is used should be cautionary to their authors. It is demonstrated that the information they contain is relocated into control indicators as the magistrates display an essentially manichaean view of the defendants before them. Are they salvageable or are they on the 'slippery slope' towards incarceration, and thus irredeemable? The graphic imagery used by magistrates to illustrate and justify their decisions is a persuasive feature of this book. The author concludes that far from presenting a true picture of defendants' lives, SIRs collude in a process whereby defendants are 'mythologised' and thus become amenable to the court's discipline. Wider information on family structure, leisure use and the extent to which the individual is seen to operate within a criminal culture, are all factors which are re-interpreted in an attempt to establish whether a defendant can be 'saved'. A very helpful chapter is aimed at practitioners and identifies ways of mitigating some features of this process. Reports should aim at securing minimal intervention, they should avoid identifying generalised welfare needs and intruding into the lives of defendants, and, finally, they should concentrate on the legitimate concern of the court on the offence, illustrating where appropriate the particular community context of an offence.

Sources of social information such as school reports and solicitors' mitigation contribute to the construction of the defendant as a 'case', although they are identified as problematic and partial as sources of data by some magistrates. Perhaps the most telling chapter in the book is the account, from observation and interview, of the actual process in court, of how magistrates manufacture information from their own exchanges with defendants and their families. Ultimately, the process is one in which the defendant is interpreted in the court's terms as an information object amenable to processing.

The results of this research are interpreted in the context of the major concern of juvenile justice for the development of the socialised tariff, aimed at identifying the 'hard-core' of delinquents. This operates against a background of routine, the exercise of discretion, and, ultimately, the irrationality of the sentencing process. This is an important study which will be of interest to both academic and practitioner. It opens up to scrutiny a process which is rarely glimpsed and examines it critically. The uncomfortable questions it raises will inform the debate surrounding the establishment of youth courts.

Tim May's study of the Probation Service has been produced at a time of intense debate about the role of the Service, a debate prompted by an unprecedented display of Government interest in the future organisation, task and direction of the Service. In the context of a flurry of Government papers (of varying hues) and the aforementioned Criminal Justice Act, this book is a timely and welcome contribution to this debate. It examines the impact of changes in the criminal justice system on the probation services, how the management and staff react to and interpret that change, and the effect this process has on the organisation.

The opening chapter provides an historical analysis of change in the probation service, looking particularly at the recent development of alternatives to custody and the legislative and administrative changes that have equipped the service to take on these tasks. This analysis is developed into the contemporary debate focussed by an ideologically motivated government on 'toughening' up the probation service in order to administer punishment in the community. Change is identified at three levels: 'macro' - involving changes in the wider criminal justice system, increasing government control via rules, inspection, and financial controls; 'mezzo' - involving the advent of a new managerialism, the establishment of corporate objectives, and the increased monitoring and evaluation of the work of front-line staff; and finally 'micro' involving a changed notion of professionalism, the use of ancillary staff, and the reduction of autonomy.

The 'meat' of this book is an analysis of the working out of these changes in the anonymised 'Treen' Probation Service. Through observation, interviews and questionnaires the author has built up a comprehensive, compelling, and, in my view a unique portrait of a service struggling with a process of change, welcomed by a few, seen as inevitable by some, and resented by many, particularly front-line staff. The research covers the period of a management-led initiative in response to Home Office promptings. The reactions of front-line staff are then described as they struggle to make sense of these changes in various settings: courts, hostels, day centres, community service and Divorce Court welfare. The daily dilemmas faced by these staff are portrayed with candour and, one suspects, with a certain sympathy. They are a revealing 'wart and all' portrait of the work, and they are completely convincing. The portraits are drawn out against the context of significant shifts in the accountability and the autonomy of individual staff. These shifts were widely seen as fundamentally changing the role of the service.

The final chapter examines the 'implementation gap' between management and front-line staff. It analyses how the 'Treen' service has attempted to manage the process of change at all three levels. The influence of both organisational and environmental constraints have made this a complex process to which different grades in the service have responded differentially. The end result is a service marked by fundamental conflict. The study ends with a postscript in which the debate about the future direction of the service is put into the words of the staff of the Treen Probation Service. The postscript reflects the strength of the book; it is readable, thought-provoking and presents a valuable portrait of an organisation at a time of critical change. This book will be of value to those interested in the process of organisational change; I suspect it will become required reading for practitioners in the field of criminal justice. I would venture to suggest that it is essential reading for probation managers! I was not completely convinced by the author's initial analysis of the political context of the changes in the criminal justice system. There is considerable cross-party agreement on criminal justice policy and some evidence to suggest that the 'New Right' ideology has not really established any sway in the Home Office. This is, however, only a minor quibble with a study which is both informative and readable.

Recent events have left the image of the Criminal Justice System distinctly battered. The many examples of injustice testify to its inefficiency, and the seemingly inexorable rise in crime figures appear to be untouched by the vast resources invested to combat crime. The lessons of the United States as stated in Christopher E Smith's study demonstrate the dangers of a two tier system determined by income. The analyses of the Probation Service and Magistrates Courts lift the veil on the workings of a system which, in spite of its public face, has very largely escaped the close scrutiny of the public gaze. Crime affects everyone: it is a very public phenomenon. It is dealt with at the margins, late at night, in retiring rooms of courts, and behind cell doors.

An understanding of the British system of justice needs to be established, not on tattered myths (does anyone any longer believe it is the 'best'?) but on critical micro-level studies such as these. The reaction to public concern should be an attempt to discover what is actually going on in the name of justice. Crime has an impact on us all, not through the anonymity of crime figures, but because individual actions affect and sometimes shatter individual lives; accordingly an understanding of the Criminal Justice System needs to proceed from an analysis of how individual decisions and sequences of decisions affect the treatment of those caught up in the system. The presumptions, prejudices and organisational constraints which lie at the root of such decision-making will continue to provide the material for fruitful research.


Copyright Mike Creedon 1996

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