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THE RED FEATHER JOURNALof POSTMODERN CRIMINOLOGYAn International Journal |
Under the Influence: Of Drink Drivers and Communitarian
Criminology!
by Chris
Powell
Over
the past few months increased public concern has been expressed over drink driving,
especially when perpetrated by young men. In
the US President Clinton (1985) has urged a national clampdown with stiff sentences to be
imposed on under twenty one year olds caught driving with as little as the equivalent of
one beers alcohol in their bloodstream. In
the UK the Road Safety minister Steven Norris (1995) has referred to 'totally anti social
young prats' and has released statistics which amongst other things indicated that in 1994
men in their twenties were responsible for 40% of all drink related incidents. Norris was launching a 'shock' TV campaign aimed
at counteracting what he termed 'lads peer group pressure' by highlighting the remorse and
shame experienced by such a 'lad' as his pal lies critically injured as a result of his
actions. At least one newspaper, the
Manchester Evening News (1995), rushed to support Norris's initiative by publishing what
it called 'the gallery of shame' whereby a number of the local magistrates courts drunk
driving cases were identified and their sentences disclosed. The sentences were fairly typical of those handed
out to drunk drivers in the UK - a heavy fine and a ban from driving for about a year on
average. Some offenders (such as the
Conservative MP Vivian Bendall, a not so young 57, convicted for speeding along the
Embankment in London in his BMW at double the legal limit) are offered a rehabilitation
course which if completed can reduce the period of disqualification. Increasingly the picture is then one of stiffer
sentences in the US and calls for stiffer sentences and the shaming of offenders in the UK
despite the fact that the statistical evidence indicates that the 'problem' has in fact
declined quite dramatically over the past ten years.
Let us, however, put to one side the sneaking suspicion that the real purpose of
both US and UK campaigns is to legitimate more rigorous policing of young men and the
curtailment of their activities via their increased demonisation. Let us rather consider 'shaming' and a somewhat
different version of it - one which sees it as an alternative to other forms of sanction
and not an 'add on'. One which calls for the
reintegration of the shamed and not the exclusion and/or marginalisation.
An
experiment in just such an alternative is currently being conducted in the Australian
Capital Territory (A.C.T.). The experiment
was promoted by ordinary Traffic Officers who had become rather disillusioned by what they
considered to be the at best ineffective and at worst counterproductive results of the
traditional, indeed rather British approach. Accepting
the principle of mediation gaining increasing popularity in Australia for dealing with
'normal' crimes, they set about planning and implementing a version relevant to drink
drivers. The resulting process of Shaming and
Reintegration (S and R) owes a considerable intellectual debt to the 'Communitarian
Criminology' (CC) or 'Republican Criminology' of which John Braithwaite is perhaps the
leading exponent. In discussing the S and R
elements as they are displayed in Drink Driving (1989, 1994a, 1994b, 1994c) cases, the
intention is to comment generally on the theory and practice of CC. In this article I shall use CC to refer to the
theoretical perspective, S and R to refer to the officially intended outcome and
Diversionary Conference (DC) to refer to the actual event.
This account is based on the observation of an admittedly limited number of DCs,
and it is not claimed that it is comprehensive, let alone definitive. The intention and hope however, is that what
follows is a reasonably representative synthesis of the process.
Current
legal provision in the ACT allows for random Police Stops and breath testing of drivers. In the event of a positive reading, for 'first
offenders who have admitted their guilt only' the Police now have the option of offering a
DC. It is important to emphasise that this is
an offer which can be (though rarely is) refused. The
alternative is the more traditional prosecution and likelihood of an appearance in court. I will now attempt to describe some of the
characteristics of a 'typical' DC.
Dcs. Scene Setting and Facilitator's Introduction
Dcs
take place at a Police Station usually in the evening.
The drama 'unfolds' in the following manner. Initially
two Police Officers from the traffic division discuss the case relatively informally with
a Facilitator. Whilst the intention is that
the Facilitator will eventually be a Police Officer, during the experimental period the
job has been performed by a criminologist. These
three people are joined by two 'Community Representatives' (Crs). The CRs might be members of Neighborhood Watch, a
Parent Teacher Association, the Red Cross or other professional people. They are selected and approached by the Police in
negotiation with criminologists and they have to agree to appear on an expenses only
basis. Next the friends and family of the
offender are admitted and introductions ensue. Finally
the Offender is brought in. A Circle is
formed with the 'Community Team' (Police, Facilitator and CRs) on one half of the table
and the 'Offender Team' (Offender, Family, Friends and possibly Employer) on the other. The Offender sits directly opposite the
Facilitator, withdrawn a little from the circle. The
Facilitator makes an opening statement. He
(the sessions observed were conducted by a man) makes clear that he is representing the
Police and identifies everyone present for the benefit of the Offender. He warns all present (including observers such as
myself ensconced behind one way glass) that whilst they may discuss the process and
outcome publicly they must not disclose the identity of the Offender.
Next
he addresses the Offender - though its fairly obvious that everyone present is to take
note of the words. He makes clear that the
Offender's presence does not imply that its assumed that s/he is a bad person - its more
that its a rather seriously bad act that they've perpetrated. The Offender has been brave to turn up - its
clearly been embarrassing to do so and indeed for them to have to ask friends and
relatives to make an appearance on their behalf. The
purpose of the conference is to try to avoid a repetition of the offence and to come to
some agreement as to how the Offender might be able to compensate the community. He stresses that the objective is to be
constructive rather than punitive. Finally
the Offender is advised that they can leave at any point should they feel too unhappy with
the way in which matters are proceeding. If
they chose to do so the case will be dealt with in the usual way. The consequences of the usual way (automatic loss
of licence, $400 fine and a criminal record) are pointed out. It isn't made to sound too attractive an
alternative!
The
Conference
The
Facilitator next asks to Offender a series of question aimed at eliciting details of the
circumstances which led to the offence taking place.
'What exactly happened, who were you with, was it a special occasion, did you
realise you were likely to be over the limit? Here
the Offender is effectively offered the opportunity to render the offence in some senses
understandable (though not acceptable) when placed in its context. Typically Offenders respond that the event was
'special', that they hadn't really realised they'd exceeded the limit (though now
acknowledge that they had) and that drink driving wasn't something that they usually
engaged in. Relatives and friends may be
invited to confirm this account and they generally do so.
Next
the Offender is asked about his or her awareness of the dangers of drink driving. 'Haven't
you seen all the campaigns and the information, Don't you think they apply to you, Why
didn't you use a taxi or arrange for a non drinking driver?
The highly reasonable tone seems aimed at indicating the irrationality of the
behaviour. The only real option open to the
Offender is to accept his or her lack of thoughtfulness.
The Offender is then asked how they felt when they were pulled over by the Police. It becomes fairly clear that the critical concerns
tend to revolve around what is going to happen to them next. They express anxiety over the probable loss of
their licence and the consequences which would be likely to ensue. The Facilitator at first encourages this line of
thinking - asking direct questions such as 'Do you need your licence for work or to get to
work, How good is public transport in your area, Could you get someone to give you a
lift?'. Depending on the responses the
Facilitator points out that the loss of a licence has negative ramifications not merely
for the Offender but also for his/her relatives and/or dependents. 'At the very least someone else would have to
drive you around - and that would be a burden to them.
At the worst you've jeopardised your children's economic well being.' In other words license loss alone involves the
victimisation of presumed loved ones.
The
Facilitator next task is to press the Offender into considering the negative implications
of his or her drink driving in terms over and above those of 'merely' being caught and
placing their license in jeopardy. To this aim the Offender is asked why the drink
driving laws exist and is persuaded to agree that the assumed loss of control brought
about by drinking renders people likely to endanger not just themselves but others. Again the critical emphasis is on potential
material outcomes. 'How valuable is your car,
Are you insured? You're not if you've alcohol
in your bloodstream, Could you afford to replace your car tomorrow, What if you wrote off
someone else's car, It could have been a Mercedes couldn't it costing say $30,000, Could
you afford it. Even a Civil case could do
real damage to you and your family in financial terms couldn't it?'
Then
the ante is raised again. 'What if passengers
in another vehicle had been injured or killed, Couldn't this have resulted in extremely
serious legal proceedings, Weren't you risking a Manslaughter charge, Even a civil case
could cost you hundreds of thousands in compensation and costs, Are you a house owner,
well you wouldn't be, Now do you understand how lucky you are that the Police Officers
stopped you?' Hence its spelt out in no
uncertain terms how the Offender has placed at risk their own financial and personal
security, that of their family and the safety of other members of the community.
The
Facilitator then turns to the Offenders spouse. 'How did you feel when s/he told you, Were you annoyed
with them, Is s/he a good parent, a good husband or wife, How do you feel about them now
that they've placed their lives at risk, they could have deprived you all of a loving
parent and spouse, Weren't they irresponsible?' Perhaps
a friend had been present in the vehicle, the Facilitator asks if they'd realised how much
the Offender had drunk. It is pointed out
that their lives and the future of their families had also been placed under threat. Hinting for the first time of a degree of shared
responsibility the Offender is asked the cost of a taxi for the journey and its made clear
that for a relatively small sum of money a lot of risks could have been avoided.
Next
the Offenders parent is asked about their reaction to the event. Again they are drawn into articulating commonsense
(perhaps overly consensual)versions of the meaning of it all. 'How did they tell you about it, How do you feel
about coming here tonight, Isn't it rather embarrassing for you? Finally 'How would you feel about losing your
son/daughter?' Similar questions are
addressed to the Offenders siblings. If
present an employer may also be asked such questions and invited to comment on the
offenders character, work record and future prospects or lack of them should their license
be removed. The CRs are then asked for imput. 'What do they think about what they've heard,
Haven't people had enough warnings?' They are
asked if they've known of people killed or seriously injured in car crashes and if so to
indicate how traumatic in every way it was for the people involved. The Offender is asked whether s/he has got
anything they wish to say to the CRs and the result is generally a display of remorse.
Education
The
next stage consists of an 'educational display' presented by one of the Police Officers. In Australia several top ranking motor sport
drivers agreed to take part in an experiment designed to assess the effect of drinking on
their driving. Their performance after
various levels of alcohol consumption had been recorded.
These professional drivers, several of them hitherto highly skeptical about the
effects of alcohol, had all been convinced after seeing the films. All had expressed confidence in their competence
prior to and during driving but had been horrified when they'd seen the evidence of their
increasingly inept performances. They'd all
been converted to the anti drink driving cause. The
Police Officer names these drivers and asks the whole conference to agree that these
people can drive better than they can. The
Officer produces statistics, which indicate that drink induced raised confidence levels
correspond directly to a reduction in actual skill. S/he
deliberately discusses the level of impaired driving performance related to a markedly
lesser level of alcohol intake than that imbibed by the Offender. Next the various methods people use in order to
counteract the effects of alcohol are considered. Various
'myths' (cold shower, black coffee etc) are raised and dismissed and everyone is told that
only time and a lot of it will adequately result in the system being cleared. In cases considered particularly 'serious' the
Police Officer will show a video comprising of recordings taken in the aftermath of a
number of serious traffic accidents. S/he
makes clear that these accidents had all occurred locally and that the drivers responsible
for them had all had alcohol in their bloodstream, several of them at a lesser level than
the Offender had been found to have. The
Commentary is dramatic, explicit and highly emotive, 'How do you think the Police Officer,
the Fire Officer, the Ambulance and Paramedical staff felt when they pulled that lot out,
Did you see that charred body - did you see that leg?
Anyone here could have been innocently driving around Canberra and have ended up
like that - victimised by people behaving like s/he did the other night.'
Making
Amends
The
final stage of the conference involves coming to some kind of agreement as to what should
happen next. The Facilitator commences on
what he regards as the process of reintegration by observing that by now the Offender has
got a clear sense of some of the potential consequences of his or her behaviour. Now is the time to give them the opportunity to
regain the respect of the community, the respect of his or her friends and his or her self
respect. The
Facilitator declares that the purpose of the conference isn't to deliver
punishment. He observes that everything which
has taken place so far has probably been embarrassing and painful enough. What is now required is that the community be
compensated in a practical way. Something
needs to happen in order that the community can feel that whilst the Offender has behaved
shamefully s/he has done something constructive by way of recompense. The whole group is now invited to make suggestions
as to what this might be. Responses at this
point are inclined to be quite varied. The
Offenders team may consider for example that the conference experience has indeed been
embarrassing and painful enough in and of itself. The
Facilitator subtly invites the CRs to express a different view. The tendency is for them to accept that the
procedure to date had been an ordeal but to suggest that there hasn't been a sufficiently
productive outcome. The Facilitator asks the
Offender and his/her team to consider an overly 'lenient' outcome from the point of view
of mates in the pub. 'You were done for drunk
driving and all that happened was you just chatted about it for an hour and a half! You didn't lose your licence or get fined or
anything! Seems to me these conferences are
and easy option.' The Facilitator is thus
trying to achieve some 'practical action' in order that the community should benefit and
that the conference system should establish public credibility. Agreed outcomes tend to consist of activity aimed
at contributing something to the community, (likelihood's might include for example giving
a speech on the dangers of drink driving to school students or a work group, comforting
the relatives of accident victims) and/or at rehabilitating the Offender (such as
attending an alcohol counseling programme). When
the action is agreed it is written up as a contract which is signed by the Offender, a CR
and a Police Officer. The Offenders friends
or relatives are commandeered to ensure that the contract is fulfilled and the Police have
to be provided with evidence to this effect. The
Offender is formally advised that once the agreement is complied with the matter is at an
end. However the DC is only an option for
first offenders and should be considered as a last chance.
Finally the Offender is invited to draw their chair into the circle as a symbolic
representation of their reintegration into the community and the conference is terminated.
Analysis
of the DC
What
is going on in this process and how should it be evaluated?
In general procedures of S and R have been regarded as 'successful' in Australia,
and whilst it is still at an early stage their application to drink driving cases is not
thought likely to be an exception. 'Success'
can only make sense in contradistinction to a series of outcomes which might be said to
constitute 'failure'. Conferencing should
only be extended if it can be demonstrated that it spawns different and better outcomes
than what it replaces or runs alongside. In
broad terms Ccs attempt to accomplish this by presenting the old ways as inevitably
constituting a no win situation for everyone and the new way as rather closer to an
everyone win situation. The DC thus reflects
a set of assumptions which are being made in respect of the deficiencies of the
traditional and expresses a set of claims on behalf of the new. This is achieved by a series of references to the
negative things which the DC is not (which its intimated the traditional system
represents) and to the positive things the DC is (which of course the traditional system
doesn't represent). The negative features of
the traditional system have been identified by many critics from many different
theoretical perspectives - here such criticisms are endorsed in the course of the
alternative practice. The most obvious
challenge concerns what the traditional system aims to achieve, whilst a more subtle (and
possibly more significant) challenge, concerns what it essentially claims to stand for.
The
first point is essentially one rooted in pragmatism.
In respect of drink driving is establishing guilt, fining the Offender and removing
his or her licence really the best that can be achieved?
It can't be demonstrated that it deters the Offender, in fact the impact is more
likely to be the very opposite of what is intended to happen in terms of his or her
behaviour. Furthermore as the conference
process makes clear, rather than protecting future victims, such a practice almost
certainly creates new ones - the family and friends of the Offender who through no fault
of their own are landed with the burden both of the sanction and of picking up the pieces. Such outcomes are manifestly (its maintained)
undesirable. Secondly the traditional system
claims to represent the interests of the whole community, yet the typical outcomes of that
system seem prone to actually accomplish the very reverse.
Part of the appeal of CC is that of mediation models in general - that the victim
deserves a voice which is all too often denied. Another
is the recognition that the Offender is part of the community too and also deserves a
voice. Thus the traditional system actually
eliminates from its deliberations those who are most directly involved and effected. It constitutes a counterproductively adversarial
situation, which is founded in and reproduces the polarisation of those parties. In this context power tends to flow in one
direction only, a state of affairs in which the Offender is liable to feel merely an
object for disposal by others, or to put it another way alienated. Arguably people are not rendered socially
responsible by experiencing cold, highly formal state operationalised coercion, rather
whatever process occurs needs to appear legitimate and comprehensible to the individual
concerned before there can be any really meaningful positive impact on his or her
behaviour. The style of traditional
proceedings is clinical/bureaucratic, with formal rules controlling who can say what, how,
to whom and on which occasion. The system
functions to curtail dialogue, and whilst emotions are in reality expressed by judges and
magistrates, the style is dispassionate as are the claims made on its behalf.
In
merely negating the negative features of the traditional system it might be claimed that
DCs constitute a relatively positive practice, but CC makes a far broader claim for the
process in respect of additional 'constructive' outcomes.
If traditional practice implies at best objectification, at worst demonisation of
the 'deviant', CC rather claims that it aims to humanise the 'Offender'. If traditional practice asserts a clinicians lack
of emotion and an economists concern with the elimination of 'extraneous' discussion, Ccs
recognise the necessity of a place for both emotion and discussion. Indeed from their perspective, humanisation,
informalism, discussion and emotion are interlinked as are their opposites,
dehumanisation, formalism and the curtailment of discussion and expressions of emotions. So how does the process of the DC reflect the
different values?
As we
have seen the Offender, rather than being prohibited from expressing his or her version of
events is expressly pressurised to do so. Via
the detailing of the Offenders account of the circumstances surrounding the offense the
conference is encouraged to perceive a broader picture than that of the strictly legal. Detailing thus functions to open up dialogue,
whereas lack of detailing precludes it. Dialogue
enables the conference group to see things from the Offenders perspective and to see the
relevance of his or her perspective. Prior
admission of guilt, however, and other elements within the process are intended to
militate against the possibility or danger that the conference could ever go so far as to
endorse the Offenders action. What is less
than a willingness and more of a desire to engage with the Offenders account of his or her
action has been made clear by the Facilitators opening comments in which a stark
distinction has been made between act and actor/ress.
Classicist models of course draw precisely the same distinction and use that as a
primary justification not to engage in further enquiries as to the actions meanings for
the Offender - its just a legal/technical matter. The
Communitarian model, in contrast, requires the act/actor distinction in order to maintain
rather than to sever the connection between Offender and community. 'No-one is saying you're a bad person' essentially
translates as - 'We recognise that you substantially endorse and comply with the mores of
the community'. Rather than Classicisms'
clinical 'x offence merits y sanction' or the confusion of models comprising 'normal'
disposal whereby the 'Deviant' is deemed pathological and hence eligible for
marginalisation and demonisation, the logic of Communitarianism is to present a flawed
community member and to stress both the flaw and the membership. S and R as it implies thus continually fluctuates
between flaw and membership, the fluctuation producing at the psycho/social level a sense
of confusion whereby the Offender comes to be recognised as both member and shameful. The Offenders integration, whilst still intact,
has been placed in jeopardy - the DC has as its objective to demonstrate the shamefulness,
sanction the Offender and reintegrate him or her.
The
general perception is extremely important in this. As
described the DC initially seems to be comprised of teams.
On one side (surely from the Offenders point of view at least) sits the
establishment - the Police, the Facilitator and the CRs.
On the other his or her team - relatives, friends etc. However, its clearly the intention that these
teams should be, if not eroded, then at least have their securities and loyalties quite
severely tested. Initially the enterprise
symbolically expresses a marked distance between teams, a distance which is gradually
narrowed.
Hence
in respect of the CRs there is quite a lot going on aimed at reducing the social distance
between themselves and the Offender. The CRs
are invited to consider two things. The first
concerns putting themselves into the shoes of the Offender - being able to see things from
their point of view. A series of commonsense
understandings are constructed and employed in order that the Offenders meanings come to
make a kind of sense to the CRs. Given such a
person in such circumstances driving whilst drunk becomes 'comprehensible' if by no means
excusable. Secondly the CR is encouraged to
recognise that they themselves might have been tempted in similar circumstances to behave
in the same way - indeed may even have done so in the past.
Such pricking of the CR's consciences, combined with an implicit 'there but for the
fortune go you or I' (as Joan Baez so neatly put it) serves to draw together parties which
might be conventionally polarised by the legal process.
Such a reduction in social distance it is assumed makes it far less probable that
the CRs will be disposed towards a highly punitive response to the offender and rather
more probable that they will rather seek out a constructive and pragmatic option.
On the
other hand in the course of the DC the Offender is liable to see the integrity of his or
her team placed under some strain. The
process serves to at least temporarily increase the social distance between Offender and
Team. The Facilitator essentially invites the
family and friends of the Offender to consider themselves as his or her victims, and thus
subtly attempts to water any seeds of irritation which may be present in their minds. The implicit impression is that family and friends
should share the wider community's sense of dissatisfaction with the Offender - indeed
especially so as they bear a significant part of the overall community suffering. As part of that offended community they are led to
appreciate the need for a community response - that something needs to happen. Logically again as a part of the community they
are entitled to be involved in assessing precisely what that something should consist of.
Reason
and Emotion in the DC
It is
apparent that S and R is based on a subtle
and complex fusion of 'reason' and 'emotion'. Part
of the process seems to be on the surface quite obsessively rationalistic, as a sequence
of seemingly negative consequences are clarified, or as in many of these particular cases
hypothesised, from the Offenders actions. According
to any rational criteria, it is made quite clear to the Offender that he or she has
behaved 'Stupidly', that they made not just one but rather a whole series of poor
decisions. At each articulated point of the
sequence of events in question the Offender is appraised of a better, more 'sensible'
option which they chose not to make. The
drink driving laws are made to appear as if they stand for the entire community's best
assessment of rational behaviour and so in electing to disregard them the perpetrator's
offence is against both community and reason itself.
Thus a strong part of the process consists of an intense educative and re-educative
element aimed at providing 'enlightenment' - an enlightenment which incorporates the
entire conferences membership rather than merely the Offender. Such education occurs informally in the course of
the Facilitators questioning and takes place much more formally in the Police Officer's
presentation. Indeed the latter concludes
with him or her distributing advisory literature of the effects of alcohol use to everyone
present. In this act of course, community
integration rather than polarisation is again being demonstrated.
Whilst
the various elements in the process can in one sense be read as intensely if not indeed
excruciatingly rationalistic, it is just as viable to consider them as intensely and
excruciatingly emotional. The Facilitator
clearly mobilises (manipulates?) the emotions of all conference members, regularly
insisting that they declare how they felt or
what they feet. This might start at a minimal
level - 'How did you feel when you saw the police car?' (irritated?) increases - 'How did
you feel about asking your employer to come here tonight?' ('embarrassed?') and reaches
the summit of intensity, 'How do you feel about the thought that you could have deprived
little Shane here of his loving parents!' ('Suicidal!').
The emotional reaction of loved ones ('significant others') are laid bare or
manipulated in order to function as controls on the Offenders perception of his or her
action. As Braithwaite observes;
'Shaming
is more likely to be heeded when undertaken by a loved one whose respect and affection it
would be more painful to lose. Thus, the more
loving the family, the greater the possibilities for shaming to take over completely from
more explicitly punitive forms of discipline'. (Braithwaite
89)
The
Police Officers' video presentation, with disintegrating bodies much in evidence, is
obviously meant to elicit an emotional 'shock/horror' response. In addition the Offender is invited to appreciate
the perspectives of the emergency services - 'How would you feel if you had to deal with
that?' Such appreciation is predicated on the
assumption that the Offender does essentially share broader community perspectives and
will express 'normal' emotional responses. Whilst
the rationalist component of the process serves to highlight the Offenders behaviour as
'stupid' the emotional element is necessary in order for it to be rendered 'shameful'. Emotion, in theoretical terms at least
marginalised in conventional Criminal Justice proceedings, thus becomes an integral part
of the Communitarian project. Both Reason and
Emotion are used to assert the reality of the community.
Making
a Contract
Advocates
of S and R generally claim that the decision making element of the process and the
decision itself, tend to demonstrate that Communitarian objectives are accomplished. Certainly the tendency seems to be for the
conference group to 'come together' arriving at a common and 'constructive' purpose at
this stage. The Offender and his or her team
members tend to accept the legitimacy of the process.
Whilst friends and relatives may initially suggest that the evenings events of
themselves constitute sufficient suffering in terms of emotional bruising they are usually
susceptible to the Facilitators arguments concerning how leaving it at this point might
appear to the community beyond that room. It
is made clear that the recompense the Offender owes the community is something which they
are strongly encouraged, perhaps even expected to ensure occurs and indeed to help them
with. In other words they are regarded as a
key element in the Offenders reintegration.
The
CRs similarly seem liable to adopt an integrative stance.
As CRs they seem to recognise the need for sanctions to be applied and that proof
be provided of their application, but their suggestions as to what the sanctions might be
tend to be rather moderate. The husband of
one of the CRs, observing the DC, commented to me in a smilingly ironic manner that his
wife had 'wimped out'. There seems to be a
strong tendency for practical constructive suggestions to be made and indeed to be
accepted. The CRs are also often brought into
the sanction process - as agents for recompensary acts and perhaps as monitors of its
fulfillment. So CR might set up and observe
an Offenders talk to a school group, whilst family and friends might help with writing the
text and in bolstering the Offenders confidence. However,
it is worth emphasising that for CCs the DC process is in and of itself (even without
practical recompense) the producer of a socially significant outcome. 'Offence' has been acknowledged, shame has been
engendered and displayed, and reintegration to a considerable extent accomplished. Indeed the symbolic drawing of the Offenders chair
back into the circle is often followed by general expressions of support for the Offender
being made by all parties (including the Police) after the proceedings have been formally
concluded. There can be an evangelical feel
to the DCs which might by thought of as rather disturbing.
Evaluation
How
are we to evaluate the Communitarian alternative? DCs
for drink driving cases to repeat are at an exploratory stage. Many of the following observations apply to the
principle and practice of Conferencing per se, though others are rather more specific. First lets consider what Communitarian
Criminologists are inclined to promote as its more positive features. What constitutes a 'successful' outcome is
inevitably going to be defined and experienced differently by the various interactants and
agents involved. For DCs to be adopted more
widely it is obviously necessary that the majority of parties concerned feel that they
have more to gain from them than they have to lose. For
many traffic police in the A.C.T., many (not just Communitarian) criminologists, CRs and
Offenders this seems to be the case. Traffic
Police have been part of the clearing up operations in the aftermath of road accidents
which they've attributed to drinking. They
have also had the experience of picking up the same people time and time again for
drink-driving offences. It is easy from their
perspective to 'recognise' that traditional measures have failed and that alternatives
should be considered and tried. For
understandable pragmatic and practical reasons many have fully supported, indeed
instigated DCs. This author was indeed
impressed by the commitment and enthusiasm displayed by the Police Officers involved,
which seemed to go beyond the purely pragmatic. DCs
accorded them the opportunity of seeing themselves as a part of the community rather than
a cold and clinical monitor of it. They
presumably consider that they are doing something constructive rather than just picking up
the pieces and/or reporting people for probable prosecution. So far the Police maintain that the alternative
'works'.
The
CRs are provided with an opportunity to play the 'responsible' citizen, indeed the
invitation to be present in itself 'proves' that they are.
They get the chance to be involved with a process designed to maximise 'good social
order', and the declared objective of a 'constructive' outcome is of clear appeal. The Offenders are also liable to favour the
practical outcome of the new approach. After
all the likelihood is that they will emerge from this encounter with their driving licence
intact and with no criminal record. Presumably
for most the emotional battering is worth it. Much
more speculatively its possible that in the course of the process a support apparatus
emerges which they may not previously have fully acknowledged. Perhaps they do feel humanised rather than
dehumanised? Such thoughts are probable
harboured by the criminologists who have promoted the Communitarian approach. Clearly a distinction should by made between those
such as Braithwaite who are firmly committed to DCs, and others, perhaps somewhat more
skeptical, who consider that on the whole they probably result in less negative outcomes. There is, however, relative agreement on what
constitutes either 'more good' or 'less harm'. To
start with the process as we have seen tends to result in the application of less pain to
the Offender. Its been widely argued by both
liberal and radical criminologists that limiting pain to the Offender as a general rule
and contrary to what passes for 'common sense' limits the likelihood of reoffending. Punitive sanctions result in more 'commonly
understood' anti social acts rather than less. What
the Communitarians add to the debate is the suggestion that what seems less can mean more
- provided that the apparatus is in place to ensure that this can actually happen. This is not a call for tolerance, quite the
reverse. As Braithwaite puts it:-
'The
theory of reintegrative shaming implies that, rather than be tolerant and understanding,
we should be intolerant and understanding.' (Braithwaite '89)
The DC
is the apparatus for the expression of intolerance and understanding. A situation is created within which stigmatising
stereotypes are supposed to be minimised, emotion and reason are employed to promote the
notion of a community with essentially common interests, Offenders come to understand
their past foolishness and current shamefulness, and the ground work is laid for their
successful reintegration into responsible citizenship.
Depending on the theorist the project can be conceived of as pragmatic and limited
or idealistic and highly ambitious.
That
DCs represent a relatively inexpensive alternative is of course in any period of economic
stringency, a bonus. It is thus not entirely
surprising that the group most likely to question the principle of the DC are lawyers, who
after all gain most financially from traditional procedures which take for granted the
need for such 'experts'. Their arguments are
of course publicly framed rather more in terms of higher minded notions such as the
'protection of the accused'.
Critique: DCs and Drink Driving
Lets
start expressing a number of reservations. Possibly
the most straightforward issue concerns the validity of applying the general principles of
S and R to drink driving offenders. Advocates
for the Communitarian approach are well aware of the specific difficulties surrounding
these offences. The basic problem is that it
could be reasonably argued that people stopped by the Police and found to have a legally
defined excess of alcohol in their bloodstream haven't actually caused anyone damage. What they have actually done in the opinion of
geographically and historically relative medical and legal knowledge is to have placed
themselves and others at risk. I do not wish
to address here the thorny problem which may be raised by civil libertarians concerning
any rights which people may or may not have to take risks.
The essential point here is that the only real consequences emanating from an act
of drink driving are those brought about as a result of being stopped by the police. If nothing else occurs drink driving stands as a
classic example of a victimless offence. The
DC described above hence involves a sleight of the imagination in the sense that it is
grounded on the construction of synthetic victims and synthetic consequences. Whilst there may indeed be public condemnation of
drink driving in general terms no-one has actually registered a complaint of having being
adversely affected by these specific 'Offenders'. The
charge, to repeat, comes 'solely' from the Police. In
other kinds of cases, exercises in S and R involve a confirmation and hopefully a
mediation between two parties - offender and victim.
In instances of drink driving, however, the 'victim' needs to be simulated. Thus the victim is disembodied, becomes recast as
the abstract entity 'the Community' which must then of course be 'represented' and
re-embodied as CRs. CC assumes both the
reality of the 'community' and that such a community can be represented. It is riddled with highly dubious consensual
assumptions which are perhaps especially noticeable and problematic in drink driving
cases. We have seen that the CRs are
invariably drawn from the 'more respectable' sectors of society and one really has to
consider whether they are actually any more representative of anything than is the average
magistrate. The Facilitators task is to
render essentially hypothetical consequences meaningful and dramatic to the conference as
a whole. Whereas in 'normal' cases a real
victim can try to describe real consequences and real feelings here we get just
commonsense projections of what 'someone' might experience.
The process progresses via a sequence of 'what ifs'.
Arguably the most authentic element us when the Offender is invited to agree that
when s/he was stopped their real fear was of losing their licence. The Offenders perception is here rooted in reality
not hypotheticals - the only real consequences are indeed those brought about by legal
interventions. With specific regards to drink
driving cases we might conclude by querying whether in the absense of real consequences
and real victims the application of 'moral' pressure might seem to look a little less
moral. It might be the case of course that
reflecting on the DC afterwards an Offender might come to the conclusion that they've been
manipulated. It might also be the case that
in the course of the DC the Offender quickly acquires a sense of the script they are
required to deliver. Does this actually
matter? The more skeptical, for whom the
reduction of pain is the main thing, might not care too much. The display might be enough. However, for the more idealistic Communitarians,
such thoughts would be deeply distressing.
Another
issue is that so far due to the newness of the project there has been no research done to
ascertain just who it is who gets an offer of the DC alternative. Legally its restricted to first time Offenders but
beyond that lies the realm of discretion. The
literature on Policing abounds with accounts of differential deployment of officers in
certain areas, differential targetting of specific social groups believed to be
'potentially troublesome'. ACT Police even in
legal terms require no evidence of poor driving in order to instigate a spot check, so
which social groups bear the brunt? The
reality is that we live in a world inhabited not by abstract 'community members' but by
gendered, ethnic and class located ones. Structural
analyses of Policing (Scraton 87) would suggest that those groups most prone to
surveillance and control are the young working class males, who as indicated in the
opening section of this article are the current focus for attention and action in the US
and the UK. Micro analyses of Policing
(Piliavin and Briar 1969; Rock 1973) further suggest that in the course of police/public
encounters, decisions are often made on the basis of demeanour - a basis which usually
operates to the detriment of the same young working class males. Whilst I'm not maintaining that the ACT police
necessarily conform to such models, there is clearly a danger that the DC might be an
alternative primarily available to other social groups.
This would of course be nothing new as the history of alternative practicies is
littered with 'successes' based on rather limited and 'safe bet' social groups.
Critique; Communitarian Criminology
I
would like to conclude with a few general comments on CC -
For
this author it is a matter of some concern that the essentially consensual ideology
underpinning CC might disable people from addressing the kinds of questions raised by
those of a more critical and conflict orientated disposition. The structural dimensions of class, gender and
ethnicity particularly when they are allied to notions of domination and oppression relate
rather uncomfortably to a theory which stresses the 'reality' of social integration. This observation possibly makes more sense in the
context of the UK experience but as far as Australia is concerned whilst the degree of
inequality might be more limited no evidence suggests, let alone proves, that it is any
less of a reality there. From a critical
perspective the title of Braithwaites deeply humane book 'Crime Shame and Reintegration'
(Fisse and Braithwaite 1994) raises many question. Whilst
I have no doubt that he would have it otherwise the ideological context within which we
operate renders it inevitable that 'crime' will continue to refer primarily to the actions
of individuals rather than corporations or states.
Furthermore
it is those young working class males to whom the crime label will be most routinely
applied. Their crimes, and hence their
shamefulness is that which is most public and rendered most visible. Essentially social scapegoats, their
criminalisation and shaming is unjust but probably structurally inevitable. The paradox is that societies characterised by
domination both need these shameful ones and yet find it difficult to cope with the
logical outcomes of the shaming. For them the
liberals 'tolerance and understanding' is not on the agenda - nor I suspect is the
Communitarians 'intolerance and understanding'. For
an increasingly sizable minority it is difficult to envisage a future consisting of
anything other than 'intolerance and a lack of understanding'. I am suggesting that Communitarian principles make
little sense in the absense of an authentic community.
It is highly questionable whether a notion such as 'reintegration' makes any kind
of sense in terms of marginalised groups. To
be reintegrated one first needs to be integrated, and the structural context just can not
provide for such integration. CC seems
somewhat naive and manipulative in assuming such integration and the possibility that all
social groups could be reintegrated.
Conferencing
might just end up constituting a more congenial alternative means of disposal for those
individuals the state does not really want either criminalised or alienated. We live in a world in which virtually all of us
can now be considered shameworthy. Perhaps
there is a need for this kind of alternative to reassure those 'essentially respectable'
ones amongst us that we are not to be eternally damned.
Perhaps we should all convert to Catholicism!
There is a certain morality, I suppose, incumbent in the notion that more of us
deserve to experience shame and should expiate it in a communal setting, rather than the
sanctuary of the confessional box.
However,
on balance I cannot accept Braithwaites claim that shaming is a progressive measure. There seems to be a paradox here. For many of us a socially engendered sense of
personal shame is something we are overwhelmingly grateful for being able to keep to
ourselves - as private as possible. At some
level we might feel undeserving and perhaps somewhat fortunate to possess or share in the
resources which we do. Such personalised
senses of shame function ideologically in encouraging us to accept our lot. The reality might be that the fear that ones
private shamefulness might become public knowledge constitutes a very powerful form of
social control, in this sense of domination. When
such fears are activated and the shamefulness becomes public, the opportunity to express
shame, perform a penance and be returned to our usual anonymity must be desirable. By being shamed we come to experience ourselves as
less shameful.
In one
sense as a relatively classless offence drink driving must be seen as a perfectly logical
offence for Conferencing to address. Braithwaite
comments;
'Drink
driving is beyond control and does not attract the shame one would expect.' (Braithwaite
'89)
Hence
more shaming is needed. CC, whilst it
promotes reductionist policies in so far as the imposition of legalised pain is concerned,
promotes an expansionist policy as regards the definition of crime. The message is that most of us are shameworthy and
everyone would benefit from increased general levels of surveillance, which would result
in our reintegration. Such a scenario is
rather disturbing. Pace CC but I suspect that
it would probably be better if individuals at least were less shamed and subjected to less
surveillance. CC can be intoxicating,
possibly dangerously so!
Briathwaite, J 1989. Crime,
Shame and Reintegration
Braithwaite, J and Daly, K 1994a. 'Masculinities,
Violence and Communitarian Criminology', in T. Newburn and E Stanko Just Boys doing
Business, Routledge
Braithwaite, J and Mugford, S 1994b.
'Conditions of Successful Reintegration Ceremonies', British Journal of
Criminology, Vol 32, No 2
Clinton, B 1995. Quoted in
The Washington Post, June 21
Fisse, B and Braithwaite, J 1994. Corporations,
Choice and Accountability Cambridge.
Makki, T and Braithwaite, J 1994c. 'Reintegrative
Shaming and Compliance with regulatory standards', Criminology, Vol 32, No 3
Manchester Evening News, 1995, June 20th.
Norris, S 1995. Quoted in The
Guardian, June 21st.
Piliavin, I and Briar, S 1969. 'Police
encounters with Juveniles', in Rubington E and Weinberg N, Deviance, the Interactionist
Perspective, Macmillan
Rock, P 1973. Deviant
Behaviour, Hutchinson
Scraton, P 1987. Law,
Order and the Authoritarian State, Open University Press.