Vol. 14 No. 5 (May 2004), pp.324-327
CONFRONTING CRIME: CRIME CONTROL POLICY UNDER NEW LABOUR, by Michael Tonry (ed). Collumpton, Devon, UK: Willan Publishing, 2003. 256pp. Hardback $55.00. £30.00. ISBN: 1-84392-022-0.
Reviewed by David S. Mann, Department of Political Science, College of Charleston. Email: mannd@cofc.edu
Readers whose specialty is either comparative criminal justice systems or the English criminal justice system already may be familiar with this book. Those whose specialty focuses on the American system need to become so. Centuries ago the criminal justice prototype—Anglo-American, we would come to call it—was the same. New Americans have followed the credo of Fleetwood Mac: “go your own way.” Americans have much to learn from the English path, as much now as ever before.
This collection critiques three Labour position papers: “John Halliday’s 2001 Review of the Sentencing Framework, the 2000 government White Paper Justice for All and the 2002 Criminal Justice Bill” (p.x). Presumably published for those who study the British criminal justice system, the articles are based on a Cambridge Crime Policy Conference and meetings of a Cambridge Policy Study Group. Both academics and experienced practitioners are the authors.
The concept of federalism forbids an English model national crime policy in “the states.” A system in which the dominant political party is able to propose and likely pass a national crime policy is so British, in a sense, and un-American, in a comparative sense. That is precisely why those whose field is American law and politics can develop a great appreciation for these essays and mentally make relevant comparisons. What follows in this book review is a recapitulation of the editor’s theme and a brief rendition of each chapter.
Michael Tonry, the book’s editor, begins with a background chapter which, with a word change here and there, could be written about the United States: “England’s record and rising prison population is a remarkable phenomenon because it occurred during a period of generally declining crime rates” (p.3). Tonry, who holds appointments both at Cambridge and Minnesota, is conscious of the comparison. Crime rates fell in the 1990s in every Western country, yet “penal policies became increasingly severe in England and America” (pp.3-4), a situation about which there are five common explanations—populist punitiveness, race, state policies that make crime control difficult, public opinion, and politics. Tonry considers the nature of these five explanations, all of which apply equally well to both England and the U.S.
In his introductory chapter Tonry also discusses general topics from Labour’s position papers—charging, community punishment orders, custody plus and minus, sentencing guidelines, mandatory minimum sentences, extended sentences for dangerous offenders, and trial [*325] procedure matters—which serve to outline the contributions in the volume that follow. Tonry reminds the reader about some of the structural differences between England and the U.S. worthy of a brief comment: in the U.S. (and France) the concept of separation of powers at the national level would generate political compromise and consensus in policy-making. In England, resistance can only delay matters, because the majority party’s proposal is likely to pass. This is good news if the proposals are good; accountability at the polling place can become real rather than merely rhetorical if the passed policies eventually fail.
Tonry believes that sound reform proposals should be based on empirical evidence. The term he uses is “evidence-based policy-making” (p.20). Accordingly, he observes that the Labour Party’s proposals do “not always take account of the best available evidence or sometimes of any systematic evidence at all. . . . What are the risks that led the government, after so many years of such extensive consideration of criminal justice reform, and so much money spent on research in the name of evidence-based policy, to submit so flawed a set of proposals to Parliament” (p.20)? The answers to that question are tripartate and could very well be translated into U.S. terms—placating the judiciary who would otherwise be opposed to such reforms as sentencing guidelines, stalemating the Tories, and minimizing public outrage.
On the very last point, I wish an aside. The British writing style is wonderfully different. For example, Tonry writes about minimizing public outrage: “[t]he reality is that horrible crimes have always happened and always will and there is no way to assure they won’t” (p.22). How refreshing and honest.
Chapter Two discusses another criminal justice parallel between England and the U.S. – drug dependency policy. Like so many American studies, the authors here (and typical with this book, one practitioner and one scholar) focus on the linkage between drug dependency and property crime. The concentration is on behavior, such as the correlations among drug dependency and property crime (to obtain money to buy drugs), crime and drug use, and the nature of the offending population. The authors’ data suggest that there are three sets of drug users: the problem users (their guess is 250k), persistent offenders (550k), and illicit drug users (4m). The policy paper concentrates on drug testing and treatment orders (DTTO), the pilot studies of which were “targeted at offenders who have committed serious offences. . . However, this has meant that many offenders who could benefit from a DTTO are ineligible by virtue of the offence for which they are being sentenced” (p.43). There are lots of other issues concerning DTTOs, not the least of which is offenders’ non-compliance. The authors reflect by way of summary that “[m]any social policies are worth doing half-well if that is all that can be afforded” (p.46). Alas, the parallel between the U.K. and the U.S. continues.
The next chapter’s focus is on sex offenders. This topic is so complicated and the chapter so interesting, a separate review of it alone is possible. The general theme, though, is simple: “policy-makers ignore the complexity of [*326] sex offending at their—and the public’s—peril” (p.51). The most obvious difficulty is discussed in a section about recidivism and risk assessment. Should sex-offender policies differ for the person who commits a lewd act versus the person who is a pedophile? We all know the crime data are flawed for sex offenses, predicting recidivism is unreliable, distinguishing between first offenders and repeaters should be part of a policy, and some perpetrators may “graduate” to sex offenses. These authors find that the proposed policies are not evidence-based but rather are centered on the crime control theme. They write: “[I]t is important to end the cyclical process by which popular fears give rise to populist public policies which reinforce popular fears” (p.76).
Chapter Four looks at nuisance offenders and ASBO policy, issuance of anti-social behaviour orders. Here the distinction is made between crime per se and anti-social behavior or misdemeanors, with ASBOs targeting non-violent chronic offenders. Youth Offending Teams (YOT) compete with police to control this type of perpetrator. ASBOs are at best temporary remedies and, in the U.S., may parallel a diversion program.
Chapter Five discusses rules of procedure and evidence in courts and is the chapter where the American reader realizes the evolutionary difference between the British and the American systems. Nonetheless, a basic bottom-line summary is genuinely comparative: “the criminal justice system is a blunt instrument by which to seek to effect social change and regulation” (p.96). Labour proposals fall short in three ways: first, there needs to be real reform and not simply “tinkering” (p.108); second, there needs to be significant research into the needs of victims and witnesses; and third, there should be agency consolidation rather than the creation of new procedural agencies. Given that my personal specialty is not in the English system, this chapter was the most difficult to fathom.
Next come four chapters on sentencing. The first compares English and American sentencing guidelines. The English are struggling to make sense of sentencing in ways that are not too different from the U.S, and British proposals fall into the familiar trap of asserting that sentencing can accomplish crime reduction, specific and general deterrence, incapacitation, reform, and rehabilitation (p.121). Even the beginner knows the contradictions implicit there. Among the proposals discussed include restrictions on the use of custody, community orders, custody plus orders, suspended sentence orders, intermittent custody orders, sentencing guidelines, and a sentencing guideline commission. The general impression of the authors is that none of these proposals will make much of a difference because judges retain sentencing flexibility.
The second concentrates on sentence management, where there are fewer parallels to the American justice system. The reform proposal encourages judges to be more proactive rather than merely being impartial arbiters, and, citing Lord Devlin from a generation or two before, the authors suggest that judges can be both.
The third chapter on sentencing returns to a common question in the American [*327] system: is sentencing inherently racist? These authors assert that institutional racism clearly exists, with at least five factors that disadvantage black defendants—the nature of the offense committed (as in the U.S., black arrest rates are higher, compared to whites, for some violent crimes); criminal history; offender characteristics such as ability to post bail, employment history, home life, family, and education; guilty pleas and other court processing variables; and racial bias. The authors compare the British experience with data from both the U.S. and Canada and find a strong overrepresentation of blacks in English prisons leading them to posit three reforms—as I read them—that are not part of the Labour Party’s proposals. First, the authors suggest an agency to perform disparity audits of proposed new policies to determine race neutrality. Second, the authors propose reduced sentence lengths. Third, they propose diversity training programs for law enforcement. I especially like their suggestion requiring disparate impact analyses of pending criminal justice legislation to make sure that justice is not based on race, gender, or ethnicity. In the U.S., it would be wise for the 50-some legislative judiciary committees to consider performing disparate impact studies.
The last sentencing chapter addresses policies termed “custody plus” and “custody minus.” The associated proposal covers community penalties with and without short terms of imprisonment. According to the authors the proposal is quite complex, and as I read it, it attempts to provide both general and specific guidelines at once. The authors write: “The aims are to increase public confidence, enhance public protection, reduce reoffending rates and reduce or constrain prison population growth. We are skeptical whether these are realistic goals for so complex a set of proposals” (p.208).
The last substantive chapter, authored by Tonry, addresses reducing prison populations and offers a typical laundry list of front-door diversion and back-door strategies too long to list here. Tonry writes that the proposed actions “require political leadership, legislation, or both” (p.221). Leadership would promote “presumptive sentencing guidelines, new programmes, amnesties, prison waiting lists, revitalized parole, conditional dismissals—they are all possible” (p.222).
The book concludes with a summary of the Cambridge conferences. The Labour crime control policies look familiar. Time will tell if the policy outcomes conform with those prophecied here. While the U.S. has “gone its own way,” American scholars and, most importantly, policymakers can learn a lot from this book. I found it to be a wonderful read, quite thoughtful, and irresistibly comparative.
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Copyright 2004 by the author, David S. Mann.