Penal policy, crime and criminology

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Penal policy, crime and criminology
experience and new challenges.50-year
Anniversary of the Institute of Criminology and
Social Prevention

• Pains of probation practice implications
• Ioan Durnescu
• University of Bucharest

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Methodology issues

• Questions
• What are the pains of probation?
• How they affect the rehabilitation process?
  (discussion)
• Method for collecting data in-depth interview
  with 43 probationers from three different
  probation services selected as they were
  scheduled to attend appointments with probation
  counsellors
• Interviews transferred on paper and analysed
  using thematic approach (Wolcott, 1994)
• Qualitative research aiming to elicit the
  subjective experience of probationers they would
  rather avoid if possible.

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Pain in the literature

• Sykes (1958) pains of imprisonment as
  deprivations or frustrations of prison life as
  punishments which the free community deliberately
  inflicts on the offender for violating the law
  (p. 64)
• Five pains of imprisonment deprivation of
  liberty, deprivation of goods and services,
  deprivation of autonomy, deprivation of
  heterosexual relationships and deprivation of
  security.
• Payne and Ganey (1998) pains of electronic
  monitoring house arrest in terms of monetary
  costs, effects on family, temptation effect and
  bracelet effect.
• Prison Reform Trust (1997) a man who cut off
  his tag because it made him feel like a dog
• In France, for instance, after mobile electronic
  monitoring was introduced (2005) a number of
  offenders complained that the alarm was wrongly
  set off rather frequently and that the tag was
  not discreet and thus socially problematic
  (Herzog-Evans (2009) in European Journal of
  Probation www.ejprob.ro 1(2)).
• Other effects of electronic monitoring have
  included the feeling of being constantly
  monitored (Mair, Mortimer 1996) and stress caused
  by the fear of being sent back to prison
  (Herzog-Evans (2009) Nellis 2009)

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Pains of probation in this study1.
Deprivation of autonomy

• The requirement to attend appointments, to inform
  or to do certain activities (obligations)
• What I want the most the only thing that I
  wish for is something to change and I wouldnt
  have to come here (i.e.. to the probation
  service) twice a month. It is hard for me to come
  so many times a month. There are many occasions
  when I cant come cause I am sick lets say
  (one probationer in Bucharest).
• Difficulties with job or to emigrate in other
  states for getting a job
• Difficulty with joining the family which is
  located in other states.

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2. Pain of reorganizing the daily routine around
the sanction

• When imposing a suspended sentence under
  supervision the court also applied a number of
  mandatory supervisory conditions to keep
  appointments with the probation service, to
  inform probation staff regarding any income
  sources, to inform the probation counsellor when
  planning a journey that will take more than eight
  days and so on.
• For example informing about a journey taking
  longer than eight days.
• You have to let them know at least by calling
  them. You have to tell them that you want to
  travel somewhere. This is the procedure .. you
  have to tell them. It is not that they have to
  let you do this or that but you have to inform
  them. But you have to keep the tickets to prove
  that youve been where you said you go. And that
  is all. (one probationer in Sibiu)
• Offenders have to plan - created significant
  problems for many individuals , particularly in
  light of the fact that they tended to lack
  effective problem solving and self-management
  skills Andrews Bonta, 2003. Furthermore, the
  need to keep the train or the bus ticket to show
  to the probation counsellor added to the other
  paper work probationers they were expected to do
  (e.g. to produce copies from the work register,
  or copies of a rental contract and so on). Once
  the sentence is enforced probationers have to
  produce judicial proofs of their daily routine
  (work, accommodation, travel and so on).

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3. Deprivation of private or family life

• Especially during the initial stage of the
  supervision when the probation counsellor was
  conducting the so called initial assessment.
  Depending on the practitioners style, this
  assessment may take the shape of an open
  discussion, an investigative interview or even a
  psychometric session. The coverage of the
  questions was sometimes so broad that the
  probationer felt that everything about himself
  was under scrutiny
• Well the first session the first session was
  somehow different so to say he made a sort of
  report about who am I, I remember. I mean whether
  I have a girlfriend, where I live, what kind of
  people my parents are, what jobs they do, what is
  my job. I mean it was about my whole life at
  that time (one probationer in Sibiu).
• Sometimes even feelings did not escape the
  scrutiny of the specialist, causing deep
  frustration and anger especially when this was in
  conflict with the religious beliefs of the
  person
• when I have to tell my feelings I dont like
  telling anyone I dont like describing what I
  feel. I am Pentecostal Christian and I dont like
  this. If somebody comes and asks me what did you
  do ? I can not tell, nor even to the (probation)
  counsellor. I feel ashamed. It is hard. (one
  probationer in Bucharest)
• Some probationers were under 18 and thus were
  required sometimes to attend their appointments
  together with their parents. During home visits
  probation counsellors visited not only the
  offender but also (indirectly) those people who
  lived with him parents, partner, wife, or
  children. By exposing the whole family to these
  judicial forms of control the impression was
  created that both the offender and his family
  were the object of supervision. This obviously
  added more pressure on the family.

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4. Deprivation of time

• Although the meeting itself with the probation
  counsellor took between 10 to 60 minutes, in
  order to get there some probationers had to
  travel long distances.
• Problems with public transport
• Taking into account that the probation period
  could be up to nine years, it is clear that
  considerable amounts of time were effectively
  taken away from the probationer.

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5. Financial costs

• For travelling if far away
• Most of them live on social benefit or survival
  agriculture
• If they work - employer reduces wages and food
  voucher for the day.

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6. Stigmatization effects

• Although it does not involve imprisonment, by
  being asked to produce proof of employment, or
  being asked to take hours or even days off in
  order to attend meetings with probation
  counsellor, probationers were forced to inform
  their managers and colleagues about their
  juridical status
• Usually the close ones know about my situation.
  At work I avoid telling colleagues but somehow
  they found out and I had some problems (one
  probationer in Bucharest).
• As shown above, the probationers close family
  was aware of his legal status. Being under
  supervision for years is practically impossible
  to conceal.
• A significant stigmatisation issue became
  apparent when probation counsellors made home
  visits accompanied by police officers. Usually
  the police officers were wearing uniforms and
  therefore their status was clearly apparent to
  neighbours, friends, and colleagues. As a
  consequence this practice carried a very
  significant potential for stigmatization.

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7. Forced return to the offence

• A significant number of probationers complained
  that during the meetings, or when participating
  in probation programmes, they had to discuss
  their offence and that this forced return to the
  offence hurt them.
• The probation office was always located in the
  Tribunal building (county court) and that itself
  reminded the probationer what he or she did. The
  meetings with the probation staff, the topics
  they covered in their discussions, the content of
  the offending behaviour programmes and so on all
  reminded the probationer about the offence (I
  want to forget .. but in this way one
  probationer in Iasi ).
• However, it is interesting that some
  probationers identified this pain as being
  instrumental for desistance
• this ritual, to come once every two months is
  very good cause you remember what was bad it
  helps you to do good in the future (one
  probationer in Bucharest)
• The stigma, meetings with the probation
  counsellor, discussions about the offence and the
  victim and so on all seem to applications of
  what ahs been labelled reintegrative shaming
  (Braithwaite 1993). As the author noticed, shame
  could be reintegrative or disintegrative
  according to the respect or the lack of respect
  actually displayed by the correctional staff.

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8. Live under a tremendous threat

• Even if the failure to comply takes place just
  before the trial period expires, the suspended
  sentence under supervision may be revoked and the
  offender sent to prison without taking into
  consideration the time spent on suspended
  sentence. Therefore, not surprisingly, a lot of
  probationers complained that they live under a
  tremendous threat the threat of imprisonment
• Well .. first is not to make mistakes, not to
  make the same mistakes cause you are under
  supervision now. Anyway I felt the fear right in
  my bones even when I got arrested. No way .. I
  dont even think about doing it again but .
  (one probationer in Sibiu)
• As the person above mentioned, the fear of
  imprisonment seemed even higher among those
  offenders who experienced preventive arrest
  during the trial.
• In their practice, probation services employ a
  very large repertoire of tools to amplify the
  fear of imprisonment documents describing the
  conditions and obligations and the consequences
  of non-compliance, warning letters, verbal
  warnings, convocation letters and so on. These
  are just a few words that have the sound of
  handcuffs
• if I make one more mistake during the next five
  years as it is my probation period, the judge
  will give me the first punishment and add the
  punishment for the second mistake. He (the
  probation counsellor) told me not to make
  mistakes cause is not good (one probationer in
  Iasi)

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Conclusions on pains of probation

• As can be easily seen, most of these pains of
  probation are mainly economic-emotional and not
  physical. Nonetheless, they cut deeply and are
  experienced in a variety of ways depending on the
  personal circumstances and histories of the
  participants.
• However, no matter how difficult it was for
  probationers to experience supervision, none of
  them stated that they would replace it with
  imprisonment
• it is ok far better than being, God forbid, in
  prison. It is better to stay free that being
  locked up. I would come ( to probation office)
  every day only to be free .. . I mean is super
  OK, no problem
• (one probationer in Bucharest)

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Discussion

• By imposing conditions and obligations upon the
  convicted person, the court obviously seeks to
  inflict pain on (restriction or interdictions)
  while also aiming to help his rehabilitation
  (treatment obligations). This sort of dual nature
  of supervision is particularly challenging for
  practitioners who are placed in a very delicate
  ethical and practice dilemma. In essence, which
  comes first the punishment or the rehabilitation?
  Or in other words, where does the punishment
  stops and when does the rehabilitation process
  start.
• Sometimes these two aspects of probation practice
  come into conflict and the practitioner needs
  some kind of practice compass to guide his
  decisions.

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Examples of how pains of probation frustrates
the desistance

• Getting a job -The literature on offender
  reintegration demonstrates clearly the causal
  link between getting a satisfactory job and the
  process of desistance (Laub and Sampson 2003
  Farrall 2002 ).
• Being close with the family - By preventing the
  probationer from rejoining his family the
  probation service denies the him or her access to
  the social capital so vital for his desistance
  from crime (Farall 2002, 2004). Social capital is
  defined by Coleman (1994)
• the set of resources that inhere in family
  relations and in community social organisation
  and that are useful for the cognitive or social
  development of a child or young person. These
  resources differ for different persons and can
  constitute an important advantage for children
  and adolescents in their development of human
  capital (300).

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Human rights issues

• Walker (1991) operates a very useful distinction
  between obiter punishment, for those consequences
  that fall upon other people (e.g. family), and
  incidental punishment that are side effects of
  punishment (e.g. losing a job).
• Obviously some conditions and obligations are
  intended and stipulated in the law and sentence
  but others not
• Obiter family exposure to probation supervision
  (home visits, parents accompanying children)
• Incidental stigmatization (at the job,
  neighbours ) state should protect the private
  life and dignity of the convicted people.
• Obiter children of probationers especially in a
  vulnerable position for stigmatization.

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Financial costs

• The financial costs of the supervision is also a
  good example of incidental punishment.
• Travel cost like a second punishment (financial
  penalty).
• The fact of a second punishment has two major
  negative implications.
• First, from the human rights perspective this
  cost could be seen as an infringement of article
  7 of the Convention (no punishment without law)
  since the probationer is required to accept a
  punishment not provided by law.
• Second, it could be seen as a violation of a
  traditional Roman principle of law ne bis in
  idem (not to apply two punishments for the same
  offence) since for the same offence the
  probationer has been sentenced to probation and
  also forced to pay a sum of money (just like a
  fine).
• State as a duty bearer is under the obligation to
  minimise or to compensate this unintended
  punishment, by paying the travel costs of the
  offender from home to probation office.

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Effectiveness

• The last two pains of probation pain of forced
  return to the offence and life under tremendous
  threat of imprisonment reveals the theoretical
  framework of probation practice utilised in
  parts of Romania. Being focused on the past and
  based on the threat of a more severe punishment,
  probation practice seems to operate within the
  framework of deterrence and the
  risk/needs/responsivity model - RNR model (Ward
  and Maruna 2007).
• Although adherence to this model have been shown
  to reduce re-offending there are also some
  important limitations to be mentioned. One of
  these limitations also emerges from this study.
  From the probationers answers it can be
  concluded that the offenders motivation for
  adhering to the conditions of probation is not
  stimulated by the desire for a better life, or
  for a new and prosocial lifestyle, but rather by
  a fear of a worse punishment. The way probation
  supervision is constructed seems to encourage the
  offender to play the system and not to engage
  in a profound and constructive process of social
  and psychological change.
• Bottoms (2001) useful distinction between
  instrumental, constraint-based, routinised or
  habitual and normative compliance.
• Normative compliance (active engagement with the
  content of the sanction) the only one form of
  compliance that produce longer term effects on
  the desistance.
• Relationship ???

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Possible solution

• probation practice turns its focus from threats
  and risks towards strengths and the adoption of a
  good life model.
• A more constructive and probably more effective
  way of energizing the offender motivation to
  change is arguably Good Lives Model (Ward and
  Maruna, 2007 - GLM).
• GLM focuses on the offenders future supporting
  him to develop his own plan for a better life. By
  virtue of its emphasis on ways of living that are
  personally meaningful and socially acceptable,
  the model promotes a more respectful and
  collaborative style of interaction between the
  probation staff and the convicted person.
• The focus of the GLM on both goods promotion and
  risk reduction seems to respond better to the
  concerns and aspirations reported by the
  participants of this study of probation.

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Conclusion

• most of the pains of probation may constitute
  substantial infringements of human rights or are
  at least examples of ineffective practice.
• Using some specific examples the paper argues for
  an integrated response to these pains of
  probation from the human rights and Good Life
  Model perspective.
• Both these perspectives seem to support each
  other and may help to reduce the unnecessary and
  counterproductive pains of probation

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• Thank you and Happy Anniversary !!!

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