Criminal Justice Social Work
After McLeish:
Possibilities and Pitfalls
Fergus McNeill
Professor of Criminology & Social Work
0141 950 3098
Fergus.McNeill@strath.ac.uk
1
Structure
 The trouble with rehabilitation
 A little on the background to McLeish
 The main recommendations – for
CJSW at least
 Payback and public opinion
 Reinventing rehabilitation and CJSW
 Possibilities and pitfalls
2
The history of rehabilitation
Rotman (1990)
 Penitentiary
 Reforming the sinner
 Therapeutic
 Fixing the flawed
 Social learning
 Educating the poorly socialised
 Rights-based
 Reinstating the excluded
3
The collapse of the
rehabilitative ideal
 Bottoms (1980)
 Theoretically faulty: misconstrues the causes of
crime [and its nature]
 Systematically discriminatory: leads to targeting of
coercive interventions on the poor and
disadvantaged
 Inconsistent with justice: judgements about liberty
unduly influenced by dubious and subjective
‘professional’ judgements hidden from or
impenetrable to the offender
 Fundamentally moral problem is the coercion
underlying rehabilitation but, by the way, it doesn’t
work!
 N.B. Principally a critique of the treatment/medical
model of rehabilitation
4
Possible responses…
 Bottoms (1980)
 Rehabilitation revisited (consent, resources
and liberty)
 The justice model (elimination of arbitrary
discretion)
 Radical approaches (problems of just
deserts in an unjust society?)
 Incapacitation and general deterrence
(overt social control)
 Reparation (and the recognition of the
victim)
5
But which version(s) of
rehabilitation?
 ‘I have suggested that the types of therapeutic
programme and discourse which are usually discussed
[medical-somatic] are the types which are least
common in practice, and that the types which are
usually ignored [social-psychological] are the most
common in practice’ (Johnstone, 1996: 178-179).
 Different views of causes (material versus
environmental; ‘between the ears’ and ‘beyond the
ears’)
 Different role for the individual in relation to the
‘condition’ (object versus subject) and in relation to
‘treatment’ (passive versus active)
 Different treatment targets: individual versus
individual, organisational, environmental
6
Principles of the new
rehabilitationists
1. The duty of the state to provide for
rehabilitation
2. Proportional limits on the intrusions of
rehabilitation
3. Maximising voluntarism
4. Prison as a measures of last resort
(Cullen and Gilbert 1982; Rotman, 1990;
Lewis, 2005)
7
Contemporary rehabilitation?
The ‘what works’ paradigm
(forefronts intervention)
The desistance paradigm
(forefronts the change process)
Intervention or treatment
required to reduce re-offending
and protect the public
Help in navigation towards
desistance to reduce harm and
make good to offenders, victims
and communities
‘Professional’ assessment of risk
and need governed by structured
assessment instruments
Explicit dialogue and negotiation
assessing risks, needs and
strengths and resources; and
exploring opportunities to make
good
Compulsory engagement in
structured programmes and
offender management as required
elements of legal orders imposed
irrespective of consent
Collaboratively defined tasks
which tackle risks and needs and
target obstacles to desistance by
developing the offender’s human
and social capital
(McNeill, 2006)
8
The use of community disposals
in Scotland, 1932-2006
9000
8000
7000
6000
5000
4000
Impact of
National
Standards
Children's
Hearings
introduced
2,600
juveniles
3000
2000
1000
Probation
Community service
950
juveniles
0
1932
1945
1951
1959
1971
1977
1985
1995
1999
2003
2005
9
Average daily population of
Scotland’s prisons, 1900-2007
10
11
12
Scotland’s Choice (2008)

‘The evidence that we have reviewed leads us to the
conclusion that to use imprisonment wisely is to
target it where it can be most effective - in
punishing serious crime and protecting the public.
1. To better target imprisonment and make it more
effective, the Commission recommends that
imprisonment should be reserved for people whose
offences are so serious that no other form of
punishment will do and for those who pose a
significant threat of serious harm to the public.
2. To move beyond our reliance on imprisonment as a
means of punishing offenders, the Commission
recommends that paying back in the community
should become the default position in dealing with
less serious offenders’ [emphasis added].
13
Main implications for CJSW
 Community payback and the CSS (2 and 11)
 Enhanced court SW units




Diversion (3)
Bail (5)
Stage 2 sentencing vs. social enquiry (12)
Stage 3 progress courts (13)
 NCJC and NSC (8, 9 and 17)
 Resettlement and recall (18, 20 and 21)
14
National
Community Justice
Council
National
Sentencing
Council
Scottish
Government
Parole Board
for Scotland
Scottish
Prison Service
15
OTHER PENALTIES
Paying Back
without Supervision
Conviction
Admonition
Fines, etc.
Paying Back through
Restorative Justice
THE COMMUNITY
SUPERVISION
SENTENCE
Paying Back in and
to the Community
Paying Back
Financially
Paying Back by
Working at Change
Paying Back through
Unpaid Work
PRISON
Punishing Serious Crime
Protecting the Public
Paying Back through
Restriction of Liberty
16
STAGE 1:
How much
payback?
STAGE 2:
What kind of
payback?
STAGE 3:
Checking
progress
and payback
The judge makes a
judgement about
the level of penalty
required by the
offence – with
information from the
PF & defence agent
The judge makes a
judgement about
the best form of
pay back – with
input from the court
social worker and
the offender
The compliance court
holds the offender to
account for paying
back – recognising
progress and dealing
with lapses and
setbacks
17
Attitudes,
Values,
Thinking
Drugs
Use
Alcohol
Use
Peer
Pressure
Personal
Problems
Money
Problems
Paying Back by
Working at Change
Education
and
Training
Family
Issues
Mental
and Physical
Health
Work and
Leisure
Other
Problems
Housing
18
Payback in McLeish (2008)
 In essence, payback means finding constructive ways to
compensate or repair harms caused by crime. It involves
making good to the victim and/or the community. This
might be through financial payment, unpaid work,
engaging in rehabilitative work or some combination of
these and other approaches. Ultimately, one of the best
ways for offenders to pay back is by turning their lives
around. (3.28, emphasis added)
 …it is neither possible nor ethical to force people to
change. But we are clear that if people refuse to pay
back for their crimes, they must face the
consequences.(3.31b)
 The public have a right to know – routinely – how much
has been paid back and in what ways. This does not and
should not mean stigmatising as they go about paying
back; to do so would be counter-productive. But it does
and should mean that much greater effort goes into
communication with the communities in which payback
takes place. (3.31c)
19
Payback in Casey (2008)
 ‘Engaging Communities in Fighting Crime’
 A solution to perceived problems of public
confidence in criminal justice and
community penalties…
 Community service re-branded (again) as
‘community payback’
 CP to be more visible and more demanding;
not something the general public would
chose to do themselves (i.e. painful or
punishing)
 Offenders doing payback should wear bibs
identifying them as such (i.e. shaming)
20
Understanding the
public’(s’) opinion(s)
 There is no public opinion
 The myth of the punitive public
 Retribution, reparation, rehabilitation
 British Crime Survey (2007)
 Only 20% think probation (in E&W) is doing
a good job
 Ignorance of what it involves:
 “I don’t think probation means anything to
many people” (Allen and Hough, 2007)
 A common finding around the world
 So what to do about it?
21
Two (or three) strategies
(Maruna and King, forthcoming)
 Ignore the public, leave it to the experts
 Cognitive strategies: Educate the public
 But the evidence that cognitive strategies address deepseated attitudes about punishment is limited; like it or
not ‘evidence’ - in and of itself - does not persuade
 Emotive strategies: Affective justice
 Emerging evidence suggests we need to understand the
emotional needs (in social and cultural context) that
underpin attitudes to punishment
 The promise of belief in ‘redeemability’?
 Sending the right signals (Bottoms and
Wilson, 2004)
22
Casey’s Payback vs. McLeish’s
Payback?
 ‘Casey is absolutely right to utilise emotive appeals
to the public in order to increase public confidence
in the criminal justice system. Justice is, at its heart,
an emotional, symbolic process, not simply a matter
of effectiveness and efficiency. However, if Casey’s
purpose was to increase confidence in community
interventions, then she drew on the exact wrong
emotions. Desires for revenge and retribution, anger,
bitterness and moral indignation are powerful
emotive forces, but they do not raise confidence in
probation work -- just the opposite. To do that, one
would want to tap in to other, equally cherished,
emotive values, such as the widely shared belief in
redemption, the need for second chances, and
beliefs that all people can change’ (Maruna and King,
forthcoming).
23
Social work, rehabilitation and
punishment
 Punishment or alternatives to punishment?
 Constructive punishment or ‘merely
punitive punishment’? (Duff, 2003)
 A concern for justice or a concern for
effective crime control?
 Safer and stronger (and fairer?)
 Punishment in conditions of insecurity
 Trust, confidence and leniency
 Expressive punishment
 CJSW’s proper signals?
24
Retribution
(but not ‘merely
punitive’ punishment)
CJSW
Reparation
Rehabilitation
Safer, Stronger [and Fairer]
25
Communities
Courts
CJSW
Victims
Offenders
Safer, Stronger [and Fairer]
26
Possibilities and pitfalls
 Insecurity, safety and protection
 Community safety or public protection?
 The paradox of protection and the risks of
risk
 Prioritising future/virtual/dividual victims
and offenders over ‘real’ victims and
‘real’ offenders
 Rehabilitation as reparation and restoration
 The problem with the ‘re-’
 The moral and practical necessity of the
other unfashionable ‘re-’: redistribution
27
Possibilities and pitfalls
 Rethinking rehabilitation’s moral priorities
and practical focus
 Communities’, offenders’ and victims’
rights to the 3 ‘R’s
 Taking victims and communities seriously
 But to what extent is maintaining the
balance the job of CJSW and/or the job of
the whole CJS and/or the job of the whole
of society?
28
CJSW’s choice?
 We can wait and see how other
stakeholders redefine the field, or
we can work out how to do that for
ourselves, drawing on the collective
knowledge, values and skills that
accrue from over 100 years of
experience… and study, here and
elsewhere.
29
References
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Allen, R. and Hough, M. (2007) ‘Community penalties, sentencers,
the media and public opinion’ in L. Gelsthorpe and R. Morgan (eds.)
The Handbook of Probation. Cullompton: Willan.
Bottoms, A. (1980), ‘An Introduction to ‘the Coming Crisis’’ in A.E.
Bottoms and R.H. Preston (eds.) The Coming Penal Crisis. Edinburgh:
Scottish Academic Press.
Cullen, F.T. and K.E. Gilbert (1982) Reaffirming Rehabilitation.
Cincinnati, Oh.: Anderson
Duff, A. (2003) ‘Probation, Punishment and Restorative Justice:
Should Altruism Be Engaged in Punishment?’, The Howard Journal
42(1): 181–97.
Johnstone, G. (1996) Medical Concepts and Penal Policy. London:
Cavendish.
Lewis, S. (2005) Rehabilitation: Headline or Footnote in the New
Penal Policy?’, Probation Journal 52(2): 119–36.
McNeill, F. (2006) ‘A desistance paradigm for offender management’,
Criminology and Criminal Justice 6(1): 39-62.
Maruna, S. and King, A. (2008) paper forthcoming in the next issue of
the Probation Journal (December 2008)
Rotman, E. (1990) Beyond Punishment. New York: Greenwood Press.
Scottish Prisons Commission (2008) Scotland’s Choice. Edinburgh:
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Scottish Prisons Commission