Should Probation still Be Regarded as an Alternative to Punishment - Coursework Example

Probation was initially introduced to be an ‘alternative to punishment’ The roots of probation could be traced back to the traditions of the English common law. During the Middle Ages, judges wishing to spare deserving offenders from commonly used punishments such as torture, mutilation and death used their power to grant clemency and stays of execution, the common law practice of judicial reprieve allowed judges to suspend punishment so that convicted offenders could seeks a pardon, gather new evidence or demonstrate that they had reformed. Despite it’s many meanings in the commonly referred to parlance today, probation usually indicates a punitive form of sentencing for criminal offenders and delinquents youths emphasizing maintenance in the community and treatment without institutionalization or other forms of punishment. The roots of probation stem from the 1876 and the Church of England’s Temperance Society. In 1907 the government had passed its first Probation Act giving probation a statutory footing. In short, imprisonment is not seen as the ‘only club in the golf bag’ of policy options when it comes to responding to offenders, and allows the hegemony of incarceration to be challenged. Once on probation, the offender is subject to certain rules and conditions that must be followed in order to remain in the community. Most probation orders involved a contract between the court and the offender in which a prison or a jail term is suspended and the practitioner promises to obey a set of probation rules or conditions mandated by the courts. If rules are violated, or if the probationer commits another criminal offence, probation might be revoked. Also, it might be mentioned that probation is the most commonly used alternative sentence for a reasons: it is humane it helps offenders maintain community and family ties, and it is cost-effective. Incarcerating an inmate typically costs over $25,000 a year whereas probation costs $2000 a year. Keeping this basic understanding of probation in mind, the following discussion, without delving into the merit, demerits or the success and desirability of the process, will look at analyzing whether or not probation in its current sense of application is indeed a restorative mode of juvenile punishment. For the purpose of the discussion, the essay will analyse existing theory or justice administration, include those of reductivism, restorative and retributionary justice. One could understand the concept of restorative justice (RJ) as both an ‘idea’ as well as a ‘movement.’ While the concept itself is ambiguous, most have accepted that there is a need for more clarity (Braithwaite, 2002a; 2002; Dignan, 2003). There are those again that argue that for the achievement of a new paradigm it is necessary that activists go ahead of oppositional retributive-restorative caricatures of justice models and there is any attempt at addressing the relationship of retributivism and consequentialism to restorative justice. More precisely there is a need to be able to understand more and promise less (Daly and Immarigeon, 1998). It is also possible to treat reductivism and rehabilitation as synonymous even though the latter is only one way that reductivism may be manifested. The Reductivism Approach to the prison system inevitably overlaps with the broader aspects of social and economic policy. In particular, policy and practice that are concerned with education, mental health and the extent and the distribution of poverty tends to impinge upon directions set for the prison system. The reductionist agenda consists of nine basic items-the idea is that the prison system is representative of the deepest end of the criminal justice procedure ad strategies aimed at the restriction of the availability of custody produce a ripple effects through other parts of the process (Muncie, Hughes and McLaughlin, 2002). The reductionist agenda is essentially aimed at forwarding the innate assumption that the physical capacity of the prison system needs to be reduced; the fact that there should be a precise statement of minimum standards as to the physical conditions of imprisonment and these need be legally enforceable. There is the need to understand the fact that the prison system needs to have an optimal prison system staff-to-prisoner ratio that could be implemented. Also, the prison system should have at its disposal early release mechanism and use these to avoid overcrowding. The system also advocates the fact that certain categories of persons attached to imprisonment should, if space be not immediately available, wait until called up by the prison system. The approach also supports sentencing discretion and bats in favor of the sentencing system to be structured towards the use of the least restrictive sanction. Breach or default of non-custodial sanctions should only exceptionally be dealt with by imprisonment. Also, the range of non-imprisonable offenses should be widened to include certain categories of theft; and finally, the scope of criminal law should be considerably narrowed (Muncie, Hughes and McLaughlin, 2002). Most of what constitutes the current approach to crime and justice centers on retribution. Most simply put, it is a strategy to for justice that centers on offenders received their “just desserts”. Within this approach, punishment (the retributive act of the society at large) is administered according to the severity of the offense in combination with the offender’s prior involvement in criminal activity. This, justice is created through the sentencing procedure, and the subsequent punishment (incarceration, fines etc) is meted out in order to force the offender to be held accountable for his/her actions. Within the retributive model criminal activity is thought to be controlled through the intimidation of punishment. Further, recidivism is though to be inhibited by the treat of even greater punitive actions within this model. Interestingly enough one outgrowth of this retributive approach to justice has been a series of legislative acts at the state and national levels that focus on the ‘get tough’ stand with regard to juvenile crime. The problem however is that research points to the fact that sanctioning without any sort of rehabilitative effort leads to increase in recidivism rates (Andrews and Bonta, 1994). In addition to lack of supportive evidence for the get tough stance, the retributive model as been challenged on philosophical and ethical grounds as well, The idea is that, in accordance with the model while the offender might be seen as being held culpable for their actions there is no stress laid on the need for the person to be held responsible for their actions. As a result therefore victims and communities are thought to be gaining little o nothing in the process of justice being served within the retributive model. While victims and their families are increasingly are allowed to speak in court prior to sentencing. By the same token then, under the aegis of this model the communities that have been damaged as a result of the crime itself have no role to play in the sanctioning of those that are in all likelihood going to return to their neighborhoods sometime in the future making crime be a symptom of community disharmony, creating in turn a system of animosity among communities, victims and offenders that more than likely increased the probability of further criminal activity and increased violence (Fox and Brenson, 2000). In the context of the position held by probation and probation related polices in Britain, one would have to go back to the decade of the 1970s, by the end of which there was a collapse of the rehabilitative ideal, leaving the probation service without a clear philosophical rationale and this rendered it increasingly vulnerable to enforced change in the face of both external and internal pressures. For a time, its ambitions became more modest as the aim of treating and improving offenders gave way to the more prosaic goal of avoiding harm by providing and alternative to custody that would help avoid the damage inflicted by unnecessary incarceration. The electuon of Conservative government in 1979 served ti unleash a revolution that was toi have profound implications for just about every aspect of the probation service the Conservatives’ agenda was more punitive than its Labour predecessor, but equally importantly it sought to impose a new managerialism on the probation service. An early manifestation of the managerial approach took the form of a Statement of National Objectives and Priorities, which was issued by the Home Office. This urged local probation committees and chief officers to ensure that probation resources wee managed efficiently and effectively in pursuit if clear objectives with a view to delivering value for money to the taxpayer. It was rapidly augmented by a barrage of initiatives intended to ensure that local probation services attained the targets that were set of them. However, this was merely the first indication that old laissez-faire approach to probation policy which placed a high value on the professional autonomy of the individual caseworker and on the independence of local probation services, was about to be replaced but a much more assertive form of centralized control. A second key aim of the government’s managerialist strategy was to integrate the probation service much more closely into the wider penal system. This aim was clearly spelt out in a green Paper which characterized the probation service as a criminal justice agency whose primary role was to complement the work of the police, prisons and courts rather than to function as a separate social work agency (Cavadino and Dignan, 2007). This change was closely bound up with a third key aim which was directed at changing both the ethos of the probation service ad also the nature of its work with offenders. Henceforth, the aim of probation was redefined in terms of punishment and control as opposed to the pursuit of welfare objectives. The 1991 Criminal Justice Act gave added legal bite to this change of emphasis by converting the probation order into a sentence of court or formal punishment for the first time. Within the context of the `1991 Act, probation was initially expected to play an important part in developing and delivering ‘credible’ community penalties to the courts as part of the drive to limit the use of custody in offences that are less serious. The law and order counter reformation that took hold under the conservative government in the early 1990s, precipitated a further cycle of profound upheaval for the probation service. New Labour has been modernising the probation service, which is an integral component of the criminal justice system, since 1997. Under the New Labour, there has been some shift of emphasis back towards rehabilitation (notably in the shape of doing what works to confront and change offenders’ attitudes towards crime. However, the stress on ‘protection of the public’ via firm control of offenders is as strong as ever. In 2000, the probation officer’s historic statutory obligation to advise, assist and befriend the offender was abolished and replaced with a new set of aims in which protection of the public was given pride of place and which included the ‘proper punishment of offenders’. Central to the 1997, The Crime Sentences Act was the fact that the introduction of mandatory life sentences for certain second-time violent and sexual offences and minimum prison sentences for third-time drug dealers and burglars similar to the ‘three strikes and you’re out’ policy being pursued in the United States (Whitehead, 2010). The Act abolished the need for the court to seek an offender’s consent to a community sentence. The ensuing Criminal justice and court Services Act, 2000 restructured the probation services and created a unified national service for the first time. The Act set out the aims of the probation services in the following terms: to protect the public, to reduce offending and to provide for the proper punishment of offending. It also defined the purpose of the service in terms of assisting the courts in sentencing decisions and providing for the supervision and the rehabilitation of offenders. The Act accomplished many of the technocratic and mangerialistic objectives in regard to the probation services (Cavadino and Dignan, 2002). New Labour’s 2005 manifesto “Britain forward not back” repeated the message of tough on crime and its causes and proudly acknowledged that sentences had become tougher, illustrated by the fact that there were 16,000 more prison places compared with 1997. It is also stated that the new system would ensure that every offender would be individually case managed from the beginning to the end of their sentences. Furthermore, the Respect agenda was increasingly important, but mostly the idea of respect was contingent on social conditions. It was round this time that the Home secretary spoke about the central strategy that would aim at taking all possible steps to encourage prisons to become colleges for constructive citizenship rather than recruiting sergeants for crime. The idea innately central to the speech was to deliver the moderinsation of the probation services agenda so that prisons and probation would be brought closer. The central priority was articulated as the reduction of re-offending by 10 per cent by 2010. The role of the new offender manager was considered-note the change of job designation from probation to offender manager. There is also the plan to develop a mixed economy of provision, thus breaking up the monopoly position of the Probation Service in the delivery of offender services. The idea in rhetoric is that the government is committed to rehabilitation. The policy being reinforced us that in order to utilize untapped resources that existed outside the public, private and voluntary sectors would contest with each other for the contracts to deliver offender services. As a result therefore, the vision for the future consisted of regional offender managers purchasing services from different providers (which may no longer be a probation organisation), who would be expected to achieve targets and provide value for money, the rationale being to drive up standards of performance within a market-driven criminal justice system. There is a message therefore emphasizing the importance of rigorous enforcement that gas become a deeply symbolic cause of celebration during the modernization programme of the New Labour government (Whitehead, 2010). Notwithstanding the complexities in the obtaining of data, statistics have reiterated time and again the fact that crime rates have decreased-the ideals have remained focused on the prevention of reoffending, protection of the public, keeping the right people in prison and the correct management of risks that are provided by offenders. The idea therefore is that the offender manager is responsible for the punishment and the rehabilitation of offenders including the promotion of closer links with the prison system (Whitehead, 2010). The manner of the new orientation is in fact visible in the National Probation Service’s current stance: “The NPS works closely with other criminal justice agencies, including the police and prisons. For the most dangerous offenders, including sexual and violent offenders, these three agencies are required by law to work together to manage their supervision in the community. Together they will agree supervision plans designed to minimise the risk to the public from this group of offenders”. In fact there has been an overwhelming trend within the government policy aimed at a greater participation of the private sector in probation services. This is evident not just from the stance taken by the government but also by the criticisms that the government policy has come under from the opposition. An excerpt from a Financial Times article stated that: “Ken Clarke has thrown open the £1.6bn probation market to private sector companies such as Serco and G4S for the first time as part of radical plans to slash prisoner numbers and stop criminals from reoffending. The plan, published in a green paper on Tuesday, provoked an angry response from some Conservative backbenchers, who say reducing the prison population will lead to a rise in crime. However, opposition politicians said the more liberal approach to the sentencing of criminals was indeed driven by the need to deliver 26 per cent of savings at the Ministry of Justice over four years rather than any deeper commitment to penal reform. Highlighting proposals to cut the number of jail places by 6,000 within four years, the justice secretary said “prison cannot continue to be simply an expensive way of giving communities a break”. In conclusion, therefore one could reiterate the fact there is an increasing trend within the ranks of the policy makers to aim at a policy of reductionism where dealing with crime meting out justice is concerned. Punitive action will increasingly take the shape of probation, primarily because with the increasing involvement of the private sector stakes in the probation stance would significantly increase. Profit begets numbers of people on parole and probation. It would therefore be correct to state that probation can no longer be regarded as a primarily an option to prison, but a first option in terms of punitive action by itself. References: Muncie, J., Hughes, G., and McLaughlin, E., (2002). Youth justice: critical readings. Sage Publication. P361 Fox, G. L., and Brenson, M. L., (2000). Families, crime and criminal justice. Emerald Group Publishing. Pp382-383 Braithwaite, J. (2002a). Restorative justice and responsive regulation. Oxford: Oxford University Press. Braithwaite, J. (2002b). ‘Setting standards for restorative justice’. British Journal of Criminology. Vol. 42, pp563-77. Daly, K. and Immarigeon, R. (1998). ‘The past, present, and future of restorative justice: Some critical reflections’. Contemporary Justice Review. 1. pp21-45 Plan to ‘revolutionize’ probation service. Retrieved December 11, 2010. Cavadino, M., and Dignan, J., (2002). The penal system: an introduction. Sage Publications. pp140-42 The National Probation service. Retrieved December 12, 2010, Cavadino, M. & Dignan, J. (2007) The Penal System: An Introduction, London, Sage (4th ed). Pp149-151 Whitehead, P., (2010). Exploring Modern Probation: Social Theory and Organisational Complexity. Pp10-12 Read More