Criminal disorder, politically motivated

Peter McVerry SJ reviews a new book on Ireland's criminal justice system, which shows that policy is not based on data, but rather on intuition and a political desire not to appear soft on crime

By Shane Kilcommins, Ian O'Donnell, Eoin O'Sullivan, Barry Vaughan

Institute of Public Administration, €35.00 (www.ipa.ie)

This book is an invaluable resource for those who wish to understand the development of criminal justice policy and practice in Ireland. It uses, as a central point of reference, David Garland's pivotal work, The Culture of Control: Crime and Social Order in Contemporary Society (Oxford University Press, 2001). Garland argues that the focus on treatment of offenders (the penal-welfare model) which dominated criminal justice policies in the 20th century is now giving way, in Western societies, to policies which emphasize control of offenders (the "culture of control" model) through increasingly punitive measures.

This book examines the extent to which the Irish experience conforms to Garland's thesis. It looks at the history of penal policy in Ireland, crime trends and public reaction, the development of sentencing policies, the development of the roles of the judiciary, Garda and prisons, often using previously unavailable data. Ultimately, it concludes that there is so little data on which rational or consistent criminal justice policies in Ireland could be based, that they have developed in such an ad-hoc and highly politicised manner that their development both conforms to and deviates from Garland's hypothesis in significant ways.

The shift towards a culture of control was dictated by two key factors: the emergence of an acceptance in societies that high crime rates were normal, and that people were expected to plan their lives around its possibility (like traffic congestion); and the acknowledgement that the criminal justice state was limited in what it could do about it; both of which came about because of the weight of massive social change. The middle classes, who previously had been the champions of penal reform, now demanded greater control of offenders in the form of more punitive policies. Governments, keen to assert their legitimacy by providing a secure environment for their citizens, responded enthusiastically.

Irish penal policy has reflected this shift in focus from the circumstances of the offender to the nature of the offence. Increasingly punitive measures – mandatory sentencing, more prison places, more powers for the police, restrictions on access to bail and less concern for the rights of the offender vis-à-vis the victims – are all intended to quell the anxiety of voters, despite the fact that all the evidence suggests that such (often very expensive) measures make little or no difference to the crime rate.

In 1994, the Department of Justice estimated that there was a need for an additional 210 prison places. In 1997, a quick calculation by the coalition Government "on the back of an envelope", revised this number up to 800. Fianna Fáil, not wanting to be beaten (this was, after all, an election year) declared the need for 2,000 extra places, which became official policy when they came into government. All this despite the fact that there was no data available on committals to prison between 1995 and 2000, because annual prison reports were never published.

Decision-making based on data, a hallmark of modern penal planning, has never been a feature of the Irish criminal justice system! Instinct and intuition are the primary guides, resulting in an enduring commitment to approaches that have been found wanting elsewhere. These were political, rather than evidence-based, decisions, driven by the desire not to appear "soft" on crime, and which have led to measures where the potential harms were predictable. Indeed, the only public service currently available to the poor, which does not have a waiting list, is the prison service!

Irish society has been reluctant to adopt this "culture of control" as enthusiastically as other jurisdictions. The "rehabilitation model", reflected in the extensive usage of the Probation and Welfare Service, the establishment of the Drugs Court and other programmes aimed at helping offenders as an alternative to controlling their behaviour with punitive penalties, still has the support of the public.

This failure of Irish society to abandon the "rehabilitation model" with the same sense of despondency as other nations may, ironically, have been caused by its failure to embrace it with the same enthusiasm. This is evidenced by the inadequate resourcing of the Probation and Welfare Service, the failure to expand the Drugs Court and the inadequate funding of programmes intended to help offenders.

Judicial discretion, avidly guarded by the judiciary, has also slowed the shift of focus from "deprivation to depravity", as it continues to recognise the multiple disadvantages experienced by many offenders. Most evident is the frequent failure of the judiciary to impose the mandatory 10-year sentence for possession of more than €12,500 worth of drugs in particular cases where they believe such sentences to be unjust to the offender, much to the distress of the Minister for Justice, who intends to take much more of the judiciary's discretion in sentencing away from them.

Other innovations, of dubious legal basis, such as suspended sentences, supervision during deferment of sentence and a flourishing poor box system (for which this reviewer and his projects are extremely grateful!) testify to the resistance of the judiciary to shift the scales of justice away from the circumstances of the offender, with rehabilitation as its objective, to a "fixed-penalty" system, which has as its objective the control of groups.

The shift in values underpinning this "culture of control" are worth examining from an Irish perspective. The ex-offender, from being viewed as a member of society, is increasingly seen as dissociated from society, and the interests of the ex-offender are viewed as fundamentally opposed to the interests of the public at large, most clearly seen in the case of sex offenders. Indeed, there is a growing perception that there is no such thing as an "ex-offender", only someone who has offended and is likely to offend again. This shift allows society to restrict the rights of the accused to allow for more "satisfactory" outcomes, and it facilitates the imposition of more punitive penalties, as the "accused" is seen as fundamentally different from "normal"society.

It also facilitates the Minister for Justice to introduce his proposed Anti-Social Behavioural Orders (ASBOs) – most people will be led to believe (incorrectly, in my view) that they will only be applied to the little "gurriers"' who are quite different from "our" children. It is interesting that there is no pressure for mandatory prison sentences for drunk drivers, as in some Scandanavian countries, although undoubtedly this would make our roads safer and save lives. Prison, after all, is for "them", not "us".

The recognition that the police and criminal justice systems cannot, on their own, manage a growing crime problem, has led, in other countries, to the development of new ways of policing, in particular the establishment of partnerships between the police and private and community groups. In Ireland, these have been pursued haphazardly, rather than being real partnerships.

The community has been seen as a tool that can be used to suit Garda priorities. This is reflected in the proposed establishment of joint policing committees, comprising gardaí and local authority representatives, which will have no authority and can only make recommendations to the gardaí, unlike most other countries where real accountability of the police to the local communities which they serve has become the norm.

This is a well-argued, thought-provoking book which ought to be read by anyone interested in the direction in which our society is going – or who wants to try and understand what is going on in the mind of Minister Michael McDowell.p

Peter McVerry SJ was a member of the Whittaker Commission, an inquiry into the penal system in 1985. He has a long involvement in juvenile justice and youth homelessness issues