How Far Garlands Theories Can Be Applied in the Contemporary Criminal Context - Research Paper Example

Criminology Introduction: David Garland (1996) has highlighted two different kinds of responses that are exercised by Governments in contemporary crime control. One of these is the adaptive approach, wherein the Government functions as a facilitator to rehabilitate criminals, focusing upon the consequences rather than the causes of crime. According to Garland, the emerging culture of control has attributed a stronger controlling role to the Government, so that there is a greater focus on punitive measures in denouncing the criminals and reassuring the public. This essay will describe Garland’s approach and critically analyze it in the context of current criminal policy measures that are being implemented. The objective of the essay is to assess how far Garland’s theories can be applied in the contemporary criminal context, specifically in sentencing. At the outset, the essay will describe the two responses, i.e, adaptation and denial, proposed by Garland. Two newspaper articles dealing with Government reforms on sentencing guidelines will be assessed to determine whether they are examples of adaptation or denial. Contextual factors that lead to such a response will also be analyzed, so that the extent of applicability of Garland’s views can be determined. Responses to crime: According to Garland, in earlier years, the criminal justice system had assumed a hybrid penal welfare structure, combining due process and proportionate punishment with a decisive thrust in the correctionalist direction, favoring rehabilitation, welfare and criminological expertise.(Garland, 2001: 27). Developments in correctional policies demonstrated a commitment to community based solutions, with a focus on the rehabilitation of offenders and the tailoring of individual penal sentences framed in accordance with the characteristics and needs of the offenders. This approach exemplifies a pragmatic and adaptive Government response to crime, characterized by (a) the State role as a facilitator rather than controller of criminal policy (b) focus on the consequences rather than causes of crime (c) participation of non-State actors in prevention of crime (d) viewing crime prospectively, i.e, institution of crime prevention measures (Garland, 1996). But during the last part of the twentieth century, rationales for crime controls have become non correctional with new philosophies of punishment and new penological aims. (Garland, 2001:103). This is more in line with a non adaptive strategy, wherein the characteristic response of Governments is one of denial. Despite evidence that may exist on the relative inefficacy of harsh punishment as a means of controlling crime, Governments may still insist that harsh punitive measures be applied. Criminal policy objectives may include impulsive reactions to underlying problems, such as the introduction of harsh measures, valued for their symbolic effect rather than any actual mitigation of crime. Garland is of the view that because of the social and economic changes that have taken place in recent years, the new politics of crime control has become more expressive and instrumental, (Garland, 2001:139) tending to be non adaptive rather than adaptive. Garland’s argument that social and political conditions may function as a spur to bring about changes in crime policy is reflected in the newly formulated sentencing guidelines. As opposed to earlier sentencing practices where carrying a knife was an offence punishable by a fine of 500 pounds, the new sentencing guidelines provide for a person found carrying a knife and pleading not guilty to be sent to prison. (Hope, 2008). This response from the Government is clearly one of denial of the adverse consequences that could result from sending hundreds of young individuals carrying knives to prison. People who carry knives are more likely to be juveniles; for example, studies funded by the Economic and Social Research Council have shown that offending is common among young people and tends to decrease after the age of 21, with many young teenagers reporting that they carried a weapon.(www.esrc.ac.uk). Studies have shown that incarcerating young persons in prison can actually have a detrimental effect and harden them by placing them into contact with older criminals who inculcate these young people into a life of perpetual crime.(Cullen, 2007). Despite the knowledge of such studies and the negative impact of prison, the Government’s push to punish offenders who are carrying knives by throwing them into prison reflects a response of denial. Similarly, the sentencing guidelines on the offence of rape have also been changed to accommodate changing public perceptions. While 98% of rape offenders are sentenced to jail, and the minimum jail term is seven years, the new sentencing guidelines allow for the imposition of more years if the victim is a child under 13 or is mentally disturbed, or if aggravating factors like gang rape or abduction also exist. The 15% reduction in sentence available for other kinds of offences is also not available in the case of rape. (www.guardian.co.uk). This further illustrates how the Government’s stance has shifted from an adaptive stance to a focus on the benefits of punitive measures. There is a symbolic effect that is sought to be achieved through the provision for increased sentences in the Guidelines, which is intended to demonstrate recognition of the pain of the victims of rape. The rehabilitation of the individual has assumed less importance as compared to the need to punish the offenders and reassure society of its safety and the will of the Government to punish criminals. Analysis: The two newspaper articles mentioned above demonstrate how sentencing has become harsher and stricter in recent years, thereby reflecting a shift in the approach of the Government from adaptive, correctional strategies to a greater focus on punitive measures that seek a symbolic effect to allay the fears of the public and rekindle their faith in the justice system. The Criminal Justice Act of 2003 was implemented to tackle crime more effectively and the Sentencing Guidelines Council was established as a part of the initiative to provide better guidance to magistrates on sentencing policy. The Sentencing Guidelines of 2006 allow for a reduction in the length of the sentence imposed on an offender who pleads guilty to his or her offence, in proportion to the total sentence imposed, taking into account the stage at which the guilty plea is entered.(www.sentencing-guidelines.co.uk). The primary objective behind the introduction of the Guidelines appear to be the reduction of costs associated with trial and to spare the victims the pain and trauma of going through a along drawn out trial process to prove the guilt of the offender. The Positivist approach to crime states that people commit crimes because they are abnormal and often resort to it because of their biological make up, rather than the crime being the result of a rational choice made by an individual. (Joyce, 2006). This criminological approach focuses on the offender, seeking to gain an understanding of the person committing the offence rather than dwelling on the crime itself. This was in line with earlier correctional approaches to crime that advocated the rehabilitation of the offender as the ultimate objective of the criminal justice system. Newburn (2007) for example, discusses various approaches to rehabilitation and models framed to achieve the objective of integrating former criminals back into society. The underlying premise of these models is that any kind of intervention must be focused upon modifying or eliminating the dynamic risk factors in the criminal’s environment or individual cognitive or behavioral makeup that could provide a contextual thrust towards crime.(Newborn, 2007:862). Before arriving at a decision to prosecute, Crown Prosecutors were expected to apply a Full Code test, consisting of the evidential test and the public interest test. Firstly, enough compelling evidence that was reliable and could be used in a court of law was required before a prosecution could be justified. Secondly, the consequences and views expressed by the victim were to be taken into account for a prosecution to be justified. But this is now yielding to the Statutory Charging Scheme of the Crown Prosecution Service. Garland offers the view that “institutional collapse tends also to act as a spur to action.” (Garland, 2001:104). When an existing institution collapses, energy is released, which in turn leads to the generation of new ideas and new ways to deal with problems. As may be noted from the changes that have been instituted in sentencing through the Sentencing Guidelines, there is a shift from the correctional, rehabilitative approach towards criminals towards an approach that is focused more on the crime itself and how an individual committing the crime may be punished effectively. For example, the proposal to refine sentencing such that it allows for the imposition of longer sentences on those guilty of rape of a victim that is a child or mentally incompetent reflects the social context, where there is an increasing hue and cry of outrage from the public on the heinous nature of such crimes. Garland(2001) outlines several trends of the 20th century that have set the scene for led to changes in criminal policy. Firstly, the emergence of liberalism and the New Right led to the rejection of welfare capitalism. There was a great emphasis placed on adherence to moral principles and the need to crack down on and punish deviant elements. Crime and its punishment became part of the political agenda. The mass media focused upon crime, generating increased attention from the public with attendant demands for Government to promote greater safety and security of common people and placing pressure upon political and social institutions to solve the pressing issues in crime. Greater levels of police powers, tougher sentencing and even imposition of the death penalty in the United States have became the outward manifestation of this moral authoritarianism. Another aspect generating pressure for changes in criminal policy is the changing social conditions (Garland, 2001). The escalation in crime rates has been spurred further by unemployment and the recession. Changing family structures with more children being born to single mothers have further escalated crime rates. With exploding crime rates and no conclusive evidence being generated to prove that criminals may have specific pathologies that distinguish and set them apart from normal people, rehabilitation has began to be viewed with increasing disfavor. Employing a rehabilitative approach also produced indeterminate sentences that were tailored to the individual needs of criminals, rather than reflecting a uniform set of rules that could be applied to all criminals. The Sentencing Guidelines were thus a response to public concern over indeterminate sentences and differences in sentencing outcomes at different magistrate courts.(Tarling, 2006). It may also be noted that the new Sentencing Guidelines which allow for increased sentences for minor or mentally disturbed rape victims, reflects changing social perceptions. It is because of the public outrage about the harm and pain caused to such victims that Government policy as framed in the Sentencing Guidelines has set out the tougher stance that can be adopted in such cases. Moreover, the objective of the Guidelines is to address some of the drawbacks of the adversarial litigant systems. As the Right Honorable John Denham, MP points out, there are advantages to the offer of reduced sentences for guilty pleas, which were borne in mind while framing the legislation (Denham, 2007). Victims and witnesses, especially in criminal cases such as rape, will be spared the pain and trauma of having to appear in court to testify. When criminals admit to their guilt, the legal process is simplified and there are tremendous savings in costs by avoiding a long drawn out litigation process to prove the guilt of the accused person. The objectives for the framing of the Sentencing Guidelines therefore appear to conform to changing social and political expectations. They address the public concerns about indeterminate sentences by setting out guidelines for judges on sentencing terms and they also seek to allay public outrage over the pain and trauma of rape victims as well as other victims of crime. They conform to Garland’s view that the Government’s response in the framing of contemporary criminal policy is also affected by changing 20th century trends such as political and social conditions. They also reflect the change in theoretical conditions, where criminal theory has shifted from a positivist approach to a rational choice approach. While crime was earlier assessed from a positivist perspective, this has now changed to a rational choice approach (Joyce, 2006). According to this approach, a crime is an act of an individual based upon a conscious choice made on a rational basis. The underlying premise of the rational approach theory is that individuals rationally weigh up and speculate about potential future actions, making their assessments “however incomplete or inadequate, of the balance between the benefits or problems that will result.” (Newburn, 2007:157). Newburn also points out that research has shown that when preventive measures are instituted against crime, such as changing design of products to prevent their susceptibility to access and damage, or increasing surveillance can function as dampers to criminal activity. While the positive approach viewed the criminal as an unhealthy, disordered, abnormal individual that had to be corrected and rehabilitated into society, the rational choice theory looks on criminals as individuals who are able to make objective choices about potential future criminal actions. As a result, the introduction of more stringent sentencing is seen as likely to function as a deterrent to criminal activity. While the Sentencing Guidelines allow for a reduction in sentence when a criminal pleads guilty, individuals who carry knives and are unwilling to plead guilty are likely to find themselves in prison rather than escape with the payment of a fine. The shift in theoretical perspective is evident in this approach, because young people are now viewed as individuals who are able to make rational choices about the potential benefits and drawbacks of carrying a weapon. As a result, their refusal to acknowledge that they are committing an offence by carrying a knife itself merits the punishment of prison, irrespective of the potential dangers inherent in placing young people in prisons with hardened criminals, as highlighted through the ERSC studies.(www.ersc.co.uk) Garland(2001) argues that because the arrangements for penal welfarism were rather unsettled, the criminological framework supporting it was questioned, bringing forth new policies and programmes. For instance, fixed sentencing reform is one of the central ideas behind current Government policy, while proposals for mediation and restorative justice are operating marginally in the criminal justice system (Garland, 2001). The Sentencing Guidelines reflect a less adaptive response from the Government, rather there is a stronger focus on punishment and control of deviance. This is especially evident in the tougher stance taken on the carrying of knives. Tarling (2006) has pointed out that there is a wide disparity between sentences imposed by different magistrate Courts. While the Sentencing Guidelines of 2006 have spelt out the principles upon which magistrate courts are to impose sentences, Tarling (2006) argues that the guidelines may not be adequate to address the disparity in sentences. Tarling(2006) contends that merely introducing more guidelines is only likely to cause confusion and may not achieve the desired objective, i.e, to bring about uniformity in sentencing outcomes. He concludes that it may be necessary to implement mechanisms that can enforce adherence to the Guidelines, if disparities in sentencing are to be addressed. This view is also corroborated by MP John Denham, who notes that there is no monitoring of the original guideline, but this may be necessary in order to objectively assess its impact.(Denham, 2007). Conclusions: On the basis of the submissions above, it may be concluded that Garland’s views offer considerable insight into the changes that are a part of the contemporary criminological approach. The tightening up of the Sentencing Guidelines allows for harsher and stricter sentences on offenders, especially when they test the resources of the Court system by failing to acknowledge their guilt. Garland’s culture of control approach incorporates the move away from rehabilitation to punishment of criminals, the growth of prison populations and the reverting to punitive sanctions because protection of the public becomes the primary concern rather than understanding the criminal and trying to rehabilitate him or her. This is also implicit within the Guidelines, because the thrust of the guidelines reflects a growing concern with public protection as the primary concern. In the specific context of the more stringent guidelines on carrying guns and rape of minor and mentally disabled victims, it is apparent that the Government’s response is not adaptive but expressive. Despite existing research pointing to the negative impact of imposing prison sentences, especially on juveniles, the Guidelines allow for any individual carrying a knife and failing to admit guilt to be thrown into prison. Similarly, the provision to provide longer sentences for certain rape offenders also reflects a greater thrust in punitive measures rather than rehabilitation. This pattern conforms to Garland’s non adaptive responses by Government in responding to crime. On an overall basis therefore, modern criminological theory as reflected in the Sentencing Guidelines benefit from the application of Garland’s views and assist in understanding Government response to crime and criminal policy. Garland’s proposal that a breakdown of institutions leads to such changes in Government response is also borne out in the stricter regimes imposed by the new Sentencing Guidelines. While it may not be possible to specifically identify a breakdown in institutions leading to such a shift in Government policy, nevertheless the gradual shift from a rehabilitative approach to a punitive approach may well have been instigated by the very factors that Garland holds responsible for changes – i.e, social, political and theoretical shifts. This is borne out by changes in political leadership that has promoted a stricter moral approach leading to a focus on punishment, increasing social intolerance of criminals and criminal activity, as well as the shift in theoretical perspective from positivist to rational choice approach, whereby criminals must be more accountable for their actions. Thus, Garland’s views appear to have merit and are helpful in understanding why policy changes as embodied in the Sentencing Guidelines have actually taken place. References: * Cullen, Francis T, 2007. “Make rehabilitations corrections’ guiding program”, Criminology and Public Policy, 6(4): 717-727 * Denham, John, 2007. “Reduction in sentence for a guilty plea”, Letter from the Chairman of the Committee to the Chairman of the Sentencing Guidelines Council, http://www.parliament.uk/parliamentary_committees/home_affairs_committee/hac0607sggpletter.cfm; * ESRC, 2007. “Young offenders, policing and prisons in the UK”, http://www.esrc.ac.uk/ESRCInfoCentre/facts/index49.aspx?ComponentId=12690&SourcePageId=13176; * Garland, D, 2001. “The Culture of Control”, Oxford: Oxford University Press * Garland, D, 1996. “The Limits of the Sovereign State”, British Journal of Criminology 36(4): 445-471. * Hope, Christopher, 2008. “Knife criminals will be jailed after changes to sentencing rules”, BBC News, August 2, 2008. http://www.telegraph.co.uk/news/2486673/Knife-criminals-will-be-jailed-after-change-to-sentencing-rules.html; * “Reduction in Sentence for a guilty plea”, Sentencing Guidelines Council, http://www.sentencing-guidelines.gov.uk/docs/Guilty_plea_guideline.pdf; (at p 4), * Tarling, R, 2006. “Sentencing practice in magistrates’ courts revisited”, 45, The Howard Journal of Criminal Justice, 29 (1): 29-41 * Victim harm central to new rape sentencing guidelines”, The Guardian, 7 June, 2006. http://www.guardian.co.uk/uk/2006/jun/07/ukcrime.prisonsandprobation; Read More