Distinctions and Distinctiveness in the Work of Prison Officers

Liebling, Alison (2011) Distinctions and Distinctiveness in the Work of Prison Officers: Legitimacy and Authority Revisited, European Journal of Criminology, Vol. 8(6) 484-489

Fresh from last month’s engaging debate on The Spirit Level, the Differential Association decided to turn our attention to something completely different: the prison officer. Professor Alison Liebling of the University of Cambridge has been at the forefront of research in this area, and her article 'Distinctions and Distinctiveness in the Work of Prison Officers: Legitimacy and Authority Revisited' which appeared in an issue of the European Journal of Criminology guest edited by Liebling in 2011, was selected for our discussion.

Admittedly we have quite a few fans of Prof. Liebling here at the DA, so a discussion of her work was always sure to make for an engaging evening. We were certainly not left disappointed; Liebling’s article evoked an interesting and energised discussion from all in attendance.

In this article Liebling examines the importance of staff-prisoner relationships, acknowledged as the heart of the whole prison system in the 1984 report of the Control Review Committee, and outlines the significant role that prison officers play in influencing the moral quality of life in prison. Outlining five key distinctions in prison work, Liebling attempts to construct a framework that explores this important influence that officers’ behaviour and beliefs exert on the prison environment.

Liebling begins with a discussion of authority and legitimacy, arguing that clarity about these concepts is of critical importance in articulating the highly skilled and distinctive nature of prison work. The exercise of authority is central to the work of a prison officer. Officers negotiate their authority on a day-to-day basis with a sceptical and complex audience in a context in which enforcing every rule ‘by the book’ would be impossible. Officers’ use of their authority is not always obvious; it is not only confined to disciplinary action but is also used in everyday interactions with prisoners. Turning to legitimacy, meaning authority used rightfully, Liebling explains that legitimacy is not a ‘fixed phenomenon’ but a ‘perpetual discussion’ between those who hold power and the recipients of this power. Liebling then outlines five important distinctions to be made in prison officer work: between ‘law in practice’ and ‘law in the books’; ‘good’ and ‘right’ relationships; ‘tragic’ and ‘cynical’ perspectives; ‘reassurance’ and ‘relational’ safety; and ‘good’ and ‘bad’ confidence.

Of the five distinctions Liebling proposes, DA members were particularly interested in ‘good’ v ‘right’ staff-prisoner relationships. The nature of staff-prisoner relationships is a growing area of research within the arena of prison work, and we were keen to focus on Liebling’s approach to this topic. Liebling explains that the question of what constitutes a ‘good’ or ‘right’ relationship requires careful analysis. When comparing results from a survey of prisoners with observational and interview data, it became clear that the meaning of a ‘good’ relationship could differ significantly. For some prisoners a ‘good’ relationship could be characterised by respect or having a good rapport with officers, while for others the term ‘good’ could mean that contact with officers was minimal. Right relationships are to be found somewhere between formality and informality, closeness and distance, policing by consent and imposing order. As Liebling puts it, ‘niceness and blind faith in social harmony or the avoidance of conflicts, and naivety, can lead to chaos’. Returning to the statements of the Control Review Committee in 1984 that relationships were at the heart of the prison, Liebling argues that it is staff professionalism and legitimate practice that lie at the heart of prison life, and that this is about more than just relationships.

Another area that DA members were eager to discuss was staff-management relationships. Quite a few of us had seen Prof Liebling’s engaging presentation at the Scribani Conference (video available here) in September in which she made some interesting observations about the nature of the relationships that exist between officers and senior management. While officers’ work is highly visible to its key audience, prisoners, it is low visibility in relation to senior management. In the article Liebling highlights the dissonance that exists between managers’ perceptions of officers’ roles and the reality of day-to-day prison work for officers. For example, senior management (and policymakers) may believe that officers enforce all rules at all times in their dealings with prisoners while in reality officers often forgo rule enforcement and discipline in favour or discretion and the legitimate use of authority in order to maintain order. The group was also keenly interested in the role and influence of unionisation on staff-management relationships. Aware that this is an area that has received fuller empirical attention in England and Wales, DA members wondered about the dynamic that exists between unions and senior prison management in Ireland.

As always, the group discussion turned to the Irish context. We considered the changing role of the Irish prison officer over time, reflecting on the move away from a loosely articulated caring ethos towards a regime more concerned with security and coping with an expanding population. Liebling often describes prison officers as the ‘invisible ghosts of penality’, and this is certainly true when examining the position of the prison officer in Irish research. While recent years have seen exciting work emerge from Liebling and her colleagues in Cambridge, as well as from others such as Elaine Crawley, Ireland has unfortunately not enjoyed the same burgeoning scholarship in this area. The DA wondered about the nature of Irish prison work and the vast potential for Irish studies of prison officers. Throughout the meeting our discussions kept returning to the same sentiment, a frustration at the empirical deficit in this area.

Prof. Liebling’s article undoubtedly provided an engaging and thought-provoking discussion. While it is somewhat disappointing that research in Ireland has fallen considerably behind the UK (and beyond) in this context, the enthusiasm amongst all in attendance for this area is certainly encouraging. If anything is to be gleaned from this meeting of the Differential Association it is that a definite appetite exists for further knowledge about this most interesting cohort.

This month's blog was written by Colette Barry.

The views expressed are the author's alone.

The Spirit Level: Why Equality is Better for Everyone

The Spirit Level was something of a sensation when it was published in 2009. Written by the epidemiologists Richard Wilkinson and Kate Pickett, both of the University of York, it swiftly joined the pantheon of popular science tracts such as Tipping Point and Freakonomics, becoming a prestigious member of an elite group of psych-socio-economic books which are widely discussed if perhaps less widely read. The Spirit Level climbed still further when its messages sashayed their way off the shelves and into the speeches of politicians. But are such mentions sincerely meant or cynical attempts to jump on the buzzword band-wagon?

The central tenet of the book is that unequal societies do worse than more equal societies for almost every marker of social problem you can imagine, from teenage pregnancy, to imprisonment rates, from obesity to measures of trust. The writers acknowledge an intuitive tendency to agree with such statements, however, they go further than making mere statements that refer to levels of absolute poverty. For example, their claim that unequal societies do worse does not simply refer to the lowest socio-economic levels in society, rather they argue that at every level on society’s ladder, groups will be doing worse than corresponding demographic groups in more equal societies.

Unequal societies produce steep social gradients of social problems, so while you may enjoy better health than those on the rungs below you – you can be assured that those on the rung just above are enjoying better health than you.

This is perhaps the most revolutionary element of The Spirit Level, the idea that inequality is bad for all, even those of us who are living comfortably, far-removed from poverty-lines. It takes acknowledged drivers for social problems, such as relative deprivation, and effectively scales awareness of the problem up utilising an impressive array of cross-disciplinary research and theories.

It is this grand theory which has drawn ire down on the authors.  There are few books which have attracted such vociferous or sustained criticism, to the extent that books have been published which set out solely to disprove the work. Complaints centre on methodological issues and fire off accusations of cherry-picking data, the position of outliers and exaggerating correlations. The debate became so significant that it provoked a welcome level of engagement from the authors Pickett and Wilkinson, who have released an updated version of the book responding to their critics and have also participated in debates with their detractors. This is truly public academia – to an extent that can only be wistfully dreamed of by those criminologists who attempt to attain the same level of public awareness.

Clearly in any such grand theory, it is always possible to target flaws and problems. Achieving a level of nuance in a book that works in generalisations and persuasion is out of the question, and to some extent this book does function as a manifesto for change. It has become another evangelising work which seeks to determine exactly what has gone wrong in the final decades of the twentieth-century and into the twenty-first. The DA wondered how this theory of everything which focuses on inequality would relate to criminological texts dealing with the same consequences but working at the problem from a different discipline. In criminology, a variety of theories have been proposed to explain our criminological and political cultures, with terminologies ranging from late modernism, postmodernism, risk society, neo-liberalism. Perhaps The Spirit Level has something to add to these theories.

The authors’ statements that we are first generation to struggle for new answers to the question of how to improve our quality of life, sometimes seem peculiarly devoid of historical context. There is a danger, which Lucia Zedner elegantly elaborates, of seeing our present as a dystopia. We are being spectacularly solipsistic when we consider our own time as the apex or climax of history. However, refreshingly, Pickett and Wilkinson are positive in their view of how we bring about change. They use the examples of Japan and the US to illustrate just how quickly inequality can creep into a society, and how over the same period the gap can be effectively closed.

Their final chapters on environmental concerns and suggestions on how to close the inequality gap, are decidedly less compelling than previous chapters showing the correlations between social problems and inequality. These closing chapters are perhaps a pre-emptive strike against criticism that they have merely uncovered a problem without providing any solutions. While these chapters do not detract from the book, they are less confidently and expertly written, being, as they are, clearly beyond the authors’ areas of expertise. However, they do provide interesting examples and anecdotes, such as the individual carbon quota scheme being piloted in Manchester.

The Spirit Levels provides an excellent summary of hundreds of peer-reviewed studies, and effectively brings a considerable quantity of research together to form its argument. And that argument is persuasive. There are issues with causality, for example arguments in one section of the book were often reinforced by reference to earlier correlations, a method which seemed somewhat circular and lacking in internal validity. However, despite some issues which were raised within the group, and despite the above mentioned criticism from other academics, The Spirit Level remains a convincing hypothesis. Certainly the work will continue, the authors' work with The Equality Trust is just one sign that this is a idea which has more to give.

This months blog was written by Lynsey Black.

The views expressed are those of the author alone.

Distinctions and Distinctiveness by Alison Liebling

The next meeting of The Differential Association will take place on Wednesday 7th November.

The November reading material is 'Distinctions and Distinctiveness in the Work of Prison Officers: Legitimacy and Authority Revisited' by Alison Liebling, which appeared in the European Journal of Criminology guest edited by Liebling in 2011.

Liebling looks at the importance of relationships within prison, acknowledged as the heart of prison by the Home Office in a 1984 paper, and focuses on the importance of prison officers in dictating the moral quality of prison life. Using distinctions between contrasting outlooks and behaviours, Liebling builds a framework which explores the pivotal although unseen force that the attitudes of prison officers exert on prison life.

When: 6pm 7th November
Where: Back room in Mulligan's of Poolbeg Street

Coercive Confinement

Coercive Confinement in Post-Independence Ireland is hot-off the printing presses and already appears to be making ripples outside the niche criminological audience, as evidenced by a recent review in the Irish Times which states that the book deserves a wide readership, and Fintan O'Toole describing it as 'a very important book'. So The DA were delighted that the authors, Eoin O’Sullivan and Ian O’Donnell, were able to join us to discuss the book. Decamping from our normal snug in Mulligan's on Poolbeg Street, the impressive and austere surroundings of the panopticon of Kilmainham Gaol provided the perfect setting to discuss issues of social control, coercive confinement and Irish social history.

The idea for the book began life as an article that O’Sullivan and O’Donnell produced for Punishment and Society in 2007 in which they presented an alternative framework to analyse the ‘custodial landscape’. They decentralise aggregate prison numbers as the main strand of evidence upon which to draw conclusions about levels of punitiveness or tolerance. Instead they locate the prison on a wider spectrum of detention and chart it across a longer time frame. Using ‘coercive confinement’ as an alternative mode of analysis the authors bring together previously ignored institutions of social control, such as psychiatric hospitals, Mother and Baby Homes, Magdalen Laundries, reformatory and industrial schools as well as prisons.

The authors noted that upon the publications of the Ryan and Fern Reports there has been a collective denial of institutions of coercive confinement; ‘if only we’d known…’ has become something of a collective anthem.  As the authors told us, with a staggering 1% of the population being held against their will at one time, it affected so many families that widespread denial of their existence is utterly implausible. Both said they were moved by a John Banville article in the New York Times in which he speaks frankly about the tacit and widespread awareness of the institutionalisation which faced the poorer boys in his class when it came to post-primary. He is also honest about the silence that pervaded Irish society on this issue, ‘Everyone knew, but no one said’.

Challenging this convention, Eoin and Ian decided to use contemporary articles written in national publications about these institutions to expose the reality that this was not a covert practice. The book is divided into three sections: Part I – Patients, paupers and unmarried mothers; Part II – Prisoners; Part III – Troubled and troublesome children. Therein a wide range of source material, such as government reports, Irish Times investigative pieces and periodical articles show us, in the voices of the day, how these institutions were understood and being discussed.

These contemporaneous articles gave a vivid sense of many of the pervasive concerns of the day. One DA member noted the persistent anxiety surrounding Anglicanism and the fears of proselytising by this group, a fear which was repeatedly expressed by those within the Catholic Church and which provided an impetus to attempt to care for all unwanted babies, lest they find their way into heretical hands. Yet another thread which wound through many of the extracts was the continual comparisons to England, mention was repeatedly made to policy or legal innovations across the water, or indeed to the lamentable lapses in morality occasioned by their disintegrating social fabric.

Linking the network of institutions of confinement throughout Ireland with the development of penal welfarism in Ireland, the issue arose as to what extent the concept of rehabilitation had been 'farmed out' to sites such as the Mother and Baby Home, and the industrial school. For example, the industrial schools were originated with a clearly rehabilitationist ethos underpinning the 19th century legislation which established them.  Certainly, benign intentions were evident behind the inception of many of the institutions, despite subsequent neglect and failure. In this vein, one of the intended rehabilitating features of places such as the Mother and Baby Homes, namely their discretionary nature which was viewed as less stigmatising and therefore of more benefit to women resuming lives after confinement, was actually a factor which went on to contribute to the abuses as limited State intervention and considerable autonomy saw these sites operate without check for decades.

The authors' more expansive framework of coercive confinement combined with the rich first-hand accounts of these institutions and the reports looking at conditions within them makes for sobering and sad reading. For those who like to look back upon the sepia-toned good old days of low crime and low imprisonment rates this books brings into sharp focus the hidden reality of Irish society. It was noted by someone in attendance that it is for this reason that O’Sullivan and O’Donnell’s publication is also a wonderful probing piece of social history.

Popular accounts of Irish social history on the topic of institutionalisation commonly lay the full weight of blame at the feet of the Church and the State; however O’Sullivan and O’Donnell’s research shows how these explanations are incomplete. Many institutions of coercive confinement – Magdalen Laundries, Mother and Baby Homes, orphanages and industrial schools – existed before the creation of the Irish Free State. The authors remind us that the Catholic Church wasn’t actively seeking people to confine, rather the continuing support and active participation of that most sacred institution, the family, was ultimately necessary.

What factors underpinned and drove the use of coercive confinement in Ireland? Their sophisticated analysis illuminates the fundamental role of the rural economy in sustaining high levels of coercive confinement in Ireland. This is a tricky and sensitive topic, and the authors handle it in a fair and considerate manner. 

Life had an economic calculation, for those in poverty institutions of confinement were a valuable resource, a sort of safety valve. The small farmer class also used the network of institutions as a repository for surplus family members. Further, these surplus family members, excluded from inheritance or unlucky in the marriage market, themselves often joined religious orders, thereby completing a closed system which sustained the network of institutions. While Ireland was certainly a conservative and puritanical society it was the cold calculus of economics that often drove the high numbers of those coercively confined rather than simply oppressive morality. It was only as rural Ireland began to abate that the use of coercive confinement declined; the shift away from rural fundamentalism meant the need for institutions of confinement were no longer a necessity.

The authors were asked what lessons could be gleaned from their work about the prospect of prison reduction. They pointed out that the structures that underpinned coercive confinement in Ireland took a long time to dismantle, and the captive population reduced only slowly; change happened over about 30 years. In a similar vein, even when the structures that underpin the use of mass imprisonment begin to dissolve it will take a long time for the numbers to dwindle; it is not likely to be an overnight process.

Other points were raised about the idea of transcarceration, which the authors define as the redistribution of people across the various sites of confinement. While there is some evidence of this process in Ireland, and the prison population has increased in Ireland since the end of the twentieth century – becoming the primary site of custody in Ireland – the  prison only absorbed  a tiny fraction of those in other institutions. What happened to the surplus population who didn’t move into prison? The development of the Irish welfare state certainly provided some sort of net which hadn’t been there previously. Also, as Eoin pointed out, there were less surplus members of the family as the country went through a process of modernisation and urbanisation, which created new avenues of employment. Therefore the book paints a less bleak, or dystopian picture of the current state of affairs which seems to permeate much criminology, and arguments which accentuate that we are living in the worst age of confinement look tenuous in light of O'Sullivan and O'Donnell's findings. Some people in attendance described a sharp punitive up-swing in Ireland, the authors argued, however, that by taking a historical turn it is clear that penal history has been marked by decarceration, particularly in the case of women and children.

It was suggested that this concept of transcarceration could be a useful explanatory tool for American mass imprisonment. Could the massive over-representation of minority populations in American prisons be the result, in part, of people moving from captive world of slavery to more legitimate forms of incarceration? And what about the much lauded historically low imprisonment rates in the Nordic countries, could focus on these be eclipsing a dramatic story of widespread incarceration in a traditionally welfarist-orientated region?

It is exactly these questions and this type of analysis the authors hope their work will stimulate in other jurisdictions. Perhaps there were similarly high levels of coercive confinement, and if there were perhaps they have different explanatory factors. Movie images and popular discourse would give one a sense that this is a particular Irish phenomenon; however, carceral institutions were employed across the Western world. By widening the parameters of the study of punishment from imprisonment to coercive confinement and tracking these patterns longitudinally the current character of penal regimes and the nature of penal change can be given a new clarity.

Returning to an issue we dealt with in our workshop at the North/South Criminology Conference, the perhaps less grandiose nature of Irish criminological academia also emerged. For example, there were jokes that should such a study be contemplated  in other Anglophone countries such as the UK or America (or even just a handful of American states!) it would be titled simply Coercive Confinement and there would be no recourse to an explanatory sub-title which situated the work in the specific country. The DA hope that the particularistic presentation of criminological studies based in Ireland does not diminish the quality of reception for the research and does not locate it within a small sub-group of 'local interest'.

Certainly this book carries lessons of importance for Irish society and criminology, and it is something of a refreshing antidote, challenging standards and strongly held positions both academically and socially. Criminological theories which espouse an age of punitive peril would be refreshed by shifting the view from imprisonment to the more expansive and historically sensitive vantage point of coercive confinement. O’Sullivan and O’Donnell show that by focusing solely on recent increases in prison populations that the full story of social control and incarceration is obscured from view. Secondly, the book also challenges the comfy narratives of Church and State which are quickly becoming the catch-all explanations for how over 1% of the Irish population came to be detained in the web of institutional confinement. Rather than being held hostage by the Church and the State, the authors convincingly argue that the role of the family and rural economy were fundamental in maintaining the existence of these institutions. We may have become wilfully myopic, but using contemporary rather than reflective writings the authors give us a genuine insight into how prevalent and sweeping the carceral landscape was.

This blog was written by Louise Brangan and Lynsey Black.

The Spirit Level: Why Equality is Better for Everyone

The next meeting of The Differential Association will cover Richard Wilkinson and Kate Pickett's so-called 'theory of everything', The Spirit Level.

The thesis of the work, which has garnered huge worldwide interest and been subject to a sustained campaign of nay-sayers, argues that those countries with the widest disparity between the top and bottom income tiers have worse measures of practically any criterion of social ill that you can measure. A controversial and far-reaching work, so we're hoping for a robust bit of debate!

Location: Mulligan's back room, on Poolbeg Street
Date: Thursday 18th October
Time: 6pm

Discipline and Punish

Foucault, Michael (1977) Discipline and Punish, New York: Pantheon.

With so much already written about this seminal work, The Differential Association felt the time was come to tackle yet another classic in the criminological world. Discipline and Punish, a theoretical giant in the field, also comes inevitably with a legacy of polarity.

David Garland’s exposition and critique of the work (published in the 1986 American Bar Foundation Research Journal) presents the dichotomy evident in views on Foucault, do we ascribe to him celebrity or notoriety? Indeed, what is Foucault: historian, philosopher, cultural commentator? So mould-breaking was his methodology that his Chair at the Collège de France was in Systems of Thought. The changes wrought by his writings originated the term Foucauldian to assign coherence to the subsequent academics who pursued their own scholarship utilising his approaches. This testament to his influence can be seen in the now ubiquitous use of his concepts, archaeology of knowledge and a ‘history of the present’.  Michael Roth, writing in History and Theory in 1981, explicates the process that “Writing a history of the present means writing a history in the present; self-consciously writing in a field of power relations and political struggle”. A seemingly paradoxical phrase, Foucault attempted to explain contemporaneous phenomena by tracing historical roots.

Involved in penal reform and prisoners’ rights, it seemed natural perhaps that Foucault’s interest should turn to the institution of the prison itself. Coming as part of a revisionist history movement in the 1970s, Foucault attempted to trace the origins of prisons, and locate it with a political understanding, using his key concepts of power and knowledge to trace its lineage.

Discipline and Punish is renowned as having one of the most memorable openings of any book within academia - infamously opening with a visceral and disturbing description of the 1757 torture and execution of the regicide Damiens, in Paris, Foucault’s prose is literary and evocative. Contrasting the physicality and spectacle of the torture, Foucault juxtaposes this passage with a timetable for the House of Young Prisoners in Paris, representing a precise chopping-up of prisoners’ days into segments of meaningful and productive activity. Why this radical shift, accomplished in 80 years, in how we punish?

Foucault asserts that punishment gradually shifted from the body to the mind, with the penitentiary emerging in the early decades of the 19^th century as the primary method of punishing offenders, morphing from its previous incarnation as a transitory location prior to trial or punishment, or as a means of confining debtors.

Foucault asserts that prison itself learned the lessons demonstrated by the military, the convent and the school in employing the concept of discipline to achieve control, he traces the extension of the disciplinary gaze to criminals as a means of creating docile bodies, necessary for the emerging modernist economy. Stressing the importance of political economy, or the cost it takes to achieve political objectives, Foucault writes that scaffold riots in the late 18^th century, and the precarious mood of the mob at executions, rendered them too costly a means of punishing individuals. The public spectacle of execution and torture no longer worked as a visible reactivation of sovereign power, rather it had become a liability which undermined this power.

The concentration on the mind, or the soul, came at a time when the disciplines were emerging and experts were lining up to pronounce, to categories and to treat, society. The 19^th century also saw the emergence of the asylum system in many countries, led by the construction of a string of public asylums in England which revolutionised the care of insane persons and were themselves the result of changing perceptions of madness and the mind. Elaine Showalter writes in The Female Malady that “The substitution of surveillance for physical restraint may well have imposed a perhaps more absolute kind of restraint on the insane which implicated their whole being” (at page 49) – these were contemporaneous concerns, showing that Foucauldian critiques were common much earlier. It was dehumanising in a different but equally effective way to restraints.

Nicola Lacey too writes of changes that chime perfectly with Foucault’s thesis of shifting focus from the body to the mind. In her book From Moll Flanders to Tess of the D’Urbervilles, Lacey writes that in criminal justice, responsibility-attribution in criminal trials went from a purely exterior consideration of ‘did the defendant commit this act’ to questions which focused on the interior, on the soul, asking questions about intention, capacity and motivations.

Historians have reacted with ambivalence towards Foucault, distancing themselves from his method and claiming that his work is rife with cafeteria history, rifling from the sources to select only those which support his thesis. Garland elaborates on many of the key historians who cite the errors in Discipline and Punish, including Speirenburg, Langbein, Beattie, Rothman and Ignatieff who claim that his chronology is flawed, for example that torture began declining from the 1600s was already well on its way out by the mid- to late-18^th century. His views that many reformers did not in fact want prison is undermined by the strenuous works of penal reformers who worked extensively within prisons, attempting to make them rehabilitative sites. The decline in violence too over the period, acknowledged by Foucault, is held as an equally persuasive explanation for the change in punishment, occasioned by societal shifts related to state formation.

Garland himself writes that practical realities are also just as likely to underlie the state of things, such as the end of transportation due to the emerging independence of the Australian and American states. The very architecture itself may have meant that once built, prison systems were hard to gainsay, representing an enormous expense it was unlikely they would be jettisoned, especially as other alternatives did not readily present themselves. Lucia Zedner provides an example of the immutability of architecture too in her work Women, Crime and Custody in Victorian England, writing that despite growing concerns on the effect the separate system was having on prisoners, the physical space of prisons could not be easily altered, and so it persisted. Going on to criticise Foucault’s chronology, Zedner writes that when he speaks of the ‘the prison’ he refers only to those model penitentiaries such as Pentonville, as the majority of prisons in the 19^th century were far removed from this idealised type, operating within economic restraints, and immediate situational concerns. 

The nebulous concept of power in Discipline and Punish, not conceived of as Marxist, but relational and dispersed throughout society, poses a problem for some. Foucault’s dismissal or refusal to engage with the agents or sources of power renders the political dimension hollow, apolitical and unrealistic. While this is one of the revolutionary works which linked punishment and state power, work from other researchers, such as Savelsberg and Barker, show us that within the political realm there are institutionalised power relations and political dynamics which complicate political processes. As such, to describe political power in monolithic terms can stunt more probing avenues of research. In the same problematic vein, political will is seamlessly translated into reality with no mention of political opposition or grassroot resistance to certain modes of power and control.

However, despite the seeming dystopian panorama painted by Foucault, he does not conceive of power and control as evil, rather he acknowledges them as essentially productive, hence the beneficial application of it to education, health, the economy and justice. 

Other motivations in punishment, beyond those of power and control, include the Durkheimian notion that societies have a desire to punish transgressions. Garland lists many other emotions underlying the process of punishing, such as justice, forgiveness, and vengeance. An analysis which excludes these necessarily omits many realistic and human drives and is perhaps, incomplete.

So we leave you with more questions, wondering how we can use Foucault’s framework to interpret power and social control today. To what extent can we identify Foucault’s disciplinary gaze in contemporary society? Does the advent of CCTV, Neighbourhood Watch schemes and so on represent the realisation of the Panopticon society, wherein the dispersal of disciplinary techniques renders us all self-regulating bodies?

Is Discipline and Punish relevant to Ireland? Does it ably describe the development of an Irish prison system? Ireland had a vast ‘carceral archipeligo’, with an unfathomable number of the population being held in a web of institutions after the establishment of the Irish Free State. Today there are over 4,000 people prison, however between 1926 and 1951 there was over 30,000 men women and children coercively confined in Ireland. Does this show that instead there has been a dramatic loosening of social control and that state power is less invasive? Many critics have claimed that Foucault’s analysis applies to a limited number of countries, most perfectly matching France in the 1830s and 1840s and perhaps falling down as a more general description.

As previously mentioned, Foucault’s writing illustrates an ability to bring to life horrors; he writes unflinchingly and devastatingly about the torture of Damiens, and this elevation of punishment practices from the academic to the alarmingly present is a necessary tool that can sometimes appear lacking in contemporary writings on prisons. That writing can conjure compelling images of punishment should be borne in mind. The work of former Mountjoy Governor John Lonergan illustrates the benefit of openness in prison policy, which can dispel myths and educate a public conditioned to dismiss human rights concerns with statements about holiday camps.

This blog was written by Lynsey Black and Louise Brangan.

Upcoming Event: Coercive Confinement in Post-Independence Ireland

The DA are delighted that Ian O'Donnell and Eoin O'Sullivan have kindly agreed to join us to discuss their new book:

Ian O'Donnell and Eoin O'Sullivan recently launched their newest publication: Cocercive Confinement in Post-Independence Ireland. The book takes a broader and more diachronic reading of punitiveness and imprisonment, looking at previously under-researched institutions of confinement.The book also crosses many academic thresholds, and would be of interest to students and teachers of history, sociology and criminology alike. Indeed, such is the nature of the work that it has garnered wider attention than many academic texts are used to, evidenced by this welcome review in The Irish Times.

Everyone is welcome to come along for some wine, chat and nibbles and join in what is sure to be a lively discussion in a fantastic venue. Drop an email to Lynsey at blalygamal@gmail.com to book.

Date: Wednesday 12th of September
Time: 6.30-8.00pm
Venue: Kilmainham Gaol

The DA at the North South Criminology Conference, and what we did there...

The Differential Association are fresh from our excitement of presenting a workshop at the recent North South Criminology Conference on the topic of Irish criminology, what it is, what it can offer, and where we are:

• Is criminology still the ‘absentee discipline’ in Ireland?
•  Has Ireland demonstrated a distinctive criminal justice landscape?
• If so, can it offer insights to wider criminological scholarship?
• What are the barriers to criminology in Ireland – anti-intellectualism, political apathy, statistical vacuum?

Since the inception of The Differential Association over 18 months ago, we have been intrigued and delighted to read a diverse variety of criminological texts, from classics such as David Garland’s “The Culture of Control” to the emerging theories such as Robert Agnew’s conception of environmental change and its potential impact on crime. In all our discussions we seek to consistently pose certain questions of the texts, namely; can this be applied to the Irish context? The more we asked this question, the more purchase it gained, which ultimately led to the bright idea to discuss this with a wider group in a workshop.

Additionally, we wanted to evaluate the current state of the Irish criminological enterprise. The name of the workshop was a loose play on the recent Loader and Sparks book, Public Criminology? (2011). Our criminological neighbours in Britain often seem to reflect on their discipline – asking what role does criminology have? How can a more influential and productive discipline be encouraged? What is the value of criminology? Contrastingly, in Ireland, when we undertake a similar type of scan it tends to result in lamenting about criminology being Ireland’s ‘absentee discipline’.

We had a genuinely insightful discussion, and were honoured to be joined by such luminaries as Prof. Ian O’Donnell of UCD, Prof. Richard Wright of University of Missouri-St.Louis, Prof. Shadd Maruna of Queen’s University Belfast, Dr. Claire Hamilton, Senator Ivana Bacik and our own stellar DA members and supporters.

In light of the myriad fascinating comments made at the workshop, we decided we would share some of the key issues which cropped up:

Throughout the two-day conference various issues were echoed by a large number of speakers, several of which had previously arisen at DA meet-ups, and seemed to be recurring issues. For example, the lack of statistical data, rendering policy formation something of a grope in the dark.

The feature of localism and the specific social context of a highly integrated society also emerged.  With strong rural networks, Dr. KirstyHudson elaborated the consultation processes to date along with the possible ramifications of sex offender registration and notification in Northern Ireland.  Kirsty emphasised the necessarily differential application of such a scheme to Northern Ireland, changing the template somewhat from that applied in England and Wales.  It was urged that this high degree of connectivity in the community should be utilised to implement a culturally specific and appropriate procedure which played localism as a strength.

On the same panel, Geraldine O’Hare of the Probation Board of Northern Ireland again addressed a recurring issue within Irish criminology, namely the lack of statistical data.  Speaking about the risk assessment of sex offenders, Geraldine informed us that in previous years Ireland and Northern Ireland had lacked their own statistical information on sex offender recidivism rates and comparisons with risk assessment outcomes.  However the implementation of an Ireland-wide ‘stable and acute’ assessment framework is now reducing a reliance on figures from other, often non-comparable jurisdictions, and providing a sound empirical knowledge base from which to plan interventions and responses. In his own presentation, The Differential Association member Martin Quigley, also emphasised the almost whole-sale policy transfer of the Sex Offenders Act 2001 from England and Wales, articulating yet another influencing factor in the Irish criminal justice policy making process.

Turning to culturally specific contexts and how political styles emerge from within, Ian O’Donnell spoke at the launch of his new work with Eoin O’Sullivan, CoerciveConfinement in Ireland, of the impact of ruralism in Ireland, which may have enabled the confinement of the many men, women and children who were deemed of little use to the practical agricultural industry of Ireland historically.  Taking this forward, does this ruralism contribute to a certain and noticeable anti-intellectualism within Irish politics and reflected in society generally?

As has been noted, there is a very short-term focus on pragmatism within policy-making in Ireland, as evidenced in economic decisions for the economic times with no reference to wider ideology.  Does such pragmatism spring from a society concerned with practical problems and eschewing more lofty matters?

Historical context and ripples from it could also be found in the formation of the Irish state and the effect of this on our current criminal justice landscape, such as whether the Irish focus was generally on a front-end conception of the system.  As a state formed with an eye to security issues and which was forced to confront these throughout much of its history, the strengthened powers of the police and the courts were often the key considerations as opposed to back-end issues such as prisons.  What exactly is to be done with security threats once they have been processed through the various organs, found guilty and incarcerated?

Throughout much of the general DA discussion on policy-making too we have repeatedly spoken of the importance of local actors, and of the quicksilver effect that one person with vision or momentum can have, notable examples including the influence of Charles Haughey on the Department of Justice during his time there in the 1960s and the equally driven and energetic work of Michael McDowell during his time in the Department in the 2000s.  We often ask ourselves is it a case of Irish exceptionalism to be particularly susceptible to policy entrepreneurship – and if so why?  We feel this focus on the personalities of policy-creation is a lens which can illuminate much that would otherwise appear, perhaps, natural and explicable through reference to grand international trends.

Working with such questions in mind, Mary Rogan’s new book Prison Policy in Ireland not only illuminates the political, historical and social forces behind Irish prison policy, it is also an insightful contribution to broader penological scholarship and points to new methods of analysing penal change in other jurisdictions.

Another question which arose during the workshop was the power of the lobby and how this directed matters of criminal justice law-making.  Are the various industrial groups another impetus of policy in Ireland, taking into consideration the influence of such groups as the Garda Officers’ Associations and the Prison Officers’ Association.

Other matters of note that were raised at The Differential Association workshop was the distinction of the European tradition versus the US tradition of the location of criminology within universities, which led to the question how does criminological character differ whether criminology as a field is located under the umbrella of law versus sociology, reflecting European and US traditions respectively.  

The positive manoeuvrings in Irish criminal justice at the moment were warmly acknowledged, and bright lights, such as the excellent and sustained work of the Irish Penal Reform Trust.  Turning a possible negative into a definite positive, the point was raised that while Irish criminology may still be underdeveloped, we have at least avoided certain pitfalls by virtue of our nascent character, such as being thrall to administrative concerns and answering only questions posed by Government, as well as the danger of making itself irrelevant.

Criminology may no longer be absentee in Ireland – the regular meetings of the DA, new publications and journals concerned with Irish criminal justice matters, along with the annual Irish Criminology Conference all point to the range and scale of criminological activity.  More practically however, the lack of positions for newly qualified criminology students, and the traditional path of Irish emigration were highlighted as a major concern.  Overall the tone was positive and optimistic, though.  Irish criminology is out of the tracks and is developing in an interesting and possibly distinct way; Irish criminal justice patterns and events – both contemporary and historical – are still in need of much excavation and analysis.  Under these conditions the one thing we are certain of is that Irish criminology can only continue to expand.

This blog was written by Lynsey Black, Louise Brangan and Martin Quigley.

The views expressed are the authors’ alone.

Crime Behind the Glass by Laura Huey

Huey, Laura (2011) Crime behind the glass:Exploring the sublime in crime at the Vienna Kriminalmuseum, Theoretical Criminology, 15(4)

The lure of the macabre has significant purchase in contemporary culture; in her recent article on the subject of the appeal of tales of gruesome crimes, Laura Huey draws from wider research to present an analysis of our fascination with the gritty underbelly of humanity.

As a group with a definite and previously expressed interest cultural criminology The Differential Association this week eagerly fell on Huey’s article as an attempt to get to grips with the enduring attraction with the darker elements of humanity.

Taking the specific case study of the Kriminalmuseum in Vienna, Huey attempts to ask why consumers make a choice to patronise sites and activities which revolve around violent crimes, citing examples such as the Jack the Ripper walking tour in London and Madame Tussauds’ Chamber of Horrors. An interesting question asked is how museum curators select exhibits, and gauge whether sufficient interest exists to launch new works and shows. However, the question of the exchange relationship between museums and museum visitors is not explored in any real depth, and the DA felt that it would have been illuminating to know the professed reasons for visiting such attractions, and survey use for the purpose of the article could have enhanced and added to a discussion which felt like it was missing a key component.  Huey herself expresses a willingness to know more about the ‘intended audience’ of the Kriminalmuseum, and it was disappointing not to hear directly from this intended audience. In a following sentence Huey herself answers this question from assumption rather than empirical investigation; the visitors are there to see the exhibits in precisely that context framed by the curator – as an educational experience of the dark side of humanity. Assuming the intentions for creating an exhibit to be the rationale for attending an exhibit ignores the conscious choice of actual patrons.

The article covers ground quoting many writers who firmly claim the interest in the macabre as a contemporary phenomenon, many seeing it emerge from the post-modern age. This struck us as remarkably myopic, considering that the history of societal engagement with the horrific as entertainment extends for centuries into our past. The considerable crowds which attended public executions, the Penny Dreadful, and the tripping of the well-heeled through the corridors of historic lunatic asylums stand as startling markers of a trait that cannot be said to have emerged in our more recent past. Indeed, the dark elements of folk tales and pre-sanitised fairy stories speak to a desire to identify and express our fears of the unknown in a safe environment.

Huey later states that, ‘we cannot confidently say that fascination with crime, or the exploitation of this fascination, are the result of modern anxieties’. This admission appears to only partly reject the assertions that the phenomenon is recent, despite many of Huey’s own examples coming from much earlier times. This reticence to express her views is noticeable in the article. Huey seems reluctant to make firm statements and accept ownership of any point of view. As this article would appear to be the offshoot of a much larger project, this is somewhat disappointing, and the group felt that conclusions drawn from this work would have been welcomed.

The concentration on philosophical concepts, while appropriate when discussing the macabre as the sublime, rendered this article somewhat more philosophy than criminology. However we were intrigued by the philosophical definition of ‘sublime’ and felt her use of the concept added much to our understanding of the appeal of crime stories and representations – the pleasure of viewing something horrific while knowing we are safe from it.

Huey presents an interesting literature review but seems unsure, at the close, of what she has accomplished, and whether she feels she has answered her questions. The central question is ‘why crime holds an enduring appeal for so many spectators?’

Huey posits the concept of ‘riskless risk’, of crime behind the glass. However, in the ensuing paragraph Huey’s question again shifts to return the focus back to the museum curators and their selection of pieces, and why museums present such exhibitions. Huey seems unsure of her question, which perhaps explains the unfocused nature of her answers.

The article also lingers more than it need on a descriptive walk-through account of the Kriminalmuseum which, while interesting, is not directly relevant to the substance of the article. The introduction of visual elements as well is perhaps an irrelevance, and one of the images in particularly ironic fashion seems to ‘do’ that which it explores, namely the exploitation of interest in violence.

Of course, it was inevitable that the article prompted the DA to ask ourselves why we gathered every month to discuss thoughts on crimes and punishment! When confronted with the deeper question of what exactly consumers of the macabre achieve in the exchange the answer lay very much in the concept of the ‘riskless risk’ that Huey elucidates. The prospect of experiencing horrors, in a safe environment, that we reserve for our private nightmares. The sedentary nature and relative safety of our lifestyles in Western society may demand that we take other steps to introduce adrenaline, take the prevalence of extreme sports for example! The ‘civilisation’ of Western society, towards an avowed disgust of physical violence, either privately or State-sanctioned, renders much of our past history as seemingly barbaric. Yet do we feel we have lost the thrill of true danger?


This month's blog was written by Lynsey Black.


The views expressed are the author's alone.

An Irish Criminology? at the 8th North South Criminology Conference

The Differential Association will be presenting a workshop at the forthcoming North South Criminology Conference, held this year at University College Dublin, on 28th and 29th of June. We will be exploring the question of Irish criminology as laid out in our abstract below.

The Differential Association presents: An Irish Criminology?

For how much longer can we classify criminology as the ‘absentee’ discipline of Ireland, and what exactly needs to happen before we can officially announce its presence?  The state of criminology within Ireland has been much lamented by academics, its slow development and patchwork nature have been unfavourably compared to the position of the discipline internationally, notably in those countries where it is established to a high degree.  Are these comparisons justified?  Does proximity and shared history with the United Kingdom, for example, give Irish practitioners and academics unrealistic expectations of exactly how advanced our consolidation of the field should be?  Are we downplaying the significant gains made in Ireland and are we, in fact, in the process of developing something intrinsically Irish?  The Differential Association, a network of academics and practitioners, have spent the last year delving into criminological writings, discussing emerging theories and classic texts, always with an eye towards gaining a greater understanding of our own national criminological identity.  Join us for a discussion which will touch on the question of whether we are a nation characterised by apathy, would a more assertive political will to change have led the charge on criminology research or should our academic research culture be lighting the way forward.  In response to recent questions on the nature of public criminology, we will be asking how academics can influence and contribute to evidence-led policy in a culture that appears resistant.

The workshop is provisionally scheduled for 10.30-12.00 on 29th June. Due to the informal and dynamic nature of the workshop we will be restricting numbers to facilitate better discussion! We hope to see you there!

Upcoming Events: Book Club Double Bill

While we normally organise our monthly get-togethers one at a time, this month we ambitiously decided to set the date for our May and June book clubs.

First up is Crime behind the glass: Exploring thesublime in crime at the Vienna Kriminalmuseum. 

Date: 24th of May

Place: Mulliagns on Poolbeg Street

Time: 6pm

Then a fortnight later we will be meeting to cast our critical eye over Foucault's seminal text, Discipline and Punish.

Date: 7th of June

Place: Mulliagns on Poolbeg Street

Time: 6pm

All are welcome to join in what is sure to be not one, but two lively criminology conversations!

A Dire Forecast: A theoretical model of the impact of climate change on crime

Agnew, Robert (2011) A Dire Forecast: A theoretical model of the impact of climate change on crime, in Theoretical Criminology, Vol 16 (1): 21-42

In the mood for something outside our academic comfort zones this month, the DA gathered to discuss the implications and ideas put forward in Robert Agnew’s recent article in Theoretical Criminology: Dire Forecast. Agnew sets himself a bold task, pointedly stating his belief that climate change will become one the most significant driving forces behind increases in crime over the coming century. And who better to critically appraise the detrimental impact of the weather than the Irish, a nation of people who feel particularly maligned by our inclement climate!

Of course we are all familiar with images of weather-related disasters, as Agnew rightly points out, in the last 10 years many countries have been subject to catastrophic heat-waves, droughts, hurricanes and floods. Playing with the idea of the long-term implications of an increasingly volatile climate has provided fodder for many a Hollywood blockbuster – and leaving aside the ‘is it or isn’t it’ argument going on in America – the popularity of the topic suggests that climate change is very much at the front of our conscience.

The breadth of his argument sees Agnew cross disciplinary thresholds; bringing together disparate areas of literature, such as sociology, geography, social psychology and ecology, which he frames using strain theory, giving it a familiar criminological feel.

Agnew lays out the whole gamut of climate change and weather-related disasters: rising temperatures; changing patterns of precipitation; increased sea levels; hurricanes; floods; droughts. The ripple effect from these changes makes for sombre reading; water shortages will see crop production decline, resulting in food-shortages. And that is only the beginning; then there is the impact on health from malnutrition, cardio-respiratory diseases from increased air pollution, the spread of infectious diseases such as malaria, as well as the loss of livelihood, particularly in farming and fishing;  and that is to say nothing of the deeply felt trauma of weather-related catastrophes. All of which will be occurring at a time of increasing population, which will induce mass migration and see mega-cities mushroom.

He links this staggering list of climate-related changes to crime by describing them as a source of strain. These strains, or stressors, will increase poverty, erode social cohesion, weaken social support, and heightened social conflict. This paves the way for increased criminality as people’s values become less stringent and they start to see crime as a legitimate way to act out against the source of their strain. The forced migration will result in cramped and sub-par living conditions and work and resources will become increasingly scarce, all of which will provide fertile soil for increased criminality.  And it is not just the change in social structure that results in climate-related strains; Agnew cites research linking increased temperature to aggressive behaviour and heightened irritability. He also tries to link low intelligence to climate-related crime, albeit briefly, by linking it to malnutrition in pregnant women.

So did Agnew manage to convince us that the impact of climate change will do as much to crime rates as it will to sea levels? While we all admitted approaching the article with sceptical eyes, our thoughts on his paper were not as straight forward as we initially expected. Certainly, a cursory exploration reveals that Agnew is not alone in his view that climate change presents the greatest security threat of the 21st century.

The bad news is that we felt overall the article had a distractingly dystopian tone, with the entire plant appearing to edge closer to a Hobbesian state of nature, in which society comes undone due to dramatic climate change, and life becomes a violent, brutish and poverty stricken cycle. This dire state of affairs seemed to override a very important factor in this argument: even if climate change does proceed at catastrophic levels, the detrimental impacts will occur discreetly rather than uniformly. As such, how different societies and governments respond to the challenges of climate change will be highly diverse. The issue is a knottier one then Agnew presents here; one that is as much about government resources and developed democracies as it is about climate change. Evidence of this massively uneven impact can be seen around us with the current international recession; with the influence of austerity playing out very differently across national borders. And unlike the recession, climate change will generally occur at a far more incremental pace, giving states and societies longer to make sense of these changes. And what about the social cohesion that develops after unexpected disasters, such as earthquakes, floods and hurricanes; where people pull together in a sense of shared survival and solidarity? Even in places where the state is weakened, people’s shared social values are not instantly dismantled. Despite the planet-wide crisis, climate change will be experienced differently by each nation state and society; a point which should be taken more seriously if climate related criminology is to avoid the ‘dangers of dystopias’, to borrow a phrase from Lucia Zedner.

Some people felt that the arguments around urbanisation could have been teased out more, it being a far more developed area of research; and certainly would have provided a firmer scaffolding on which to hang his argument. However, this is probably a result of Agnew’s bold ambition to sketch a broad overview of this nascent research topic in the limited space provided. As he puts it, his aim in this article is to scan the environmental horizon. Other issues which pose intriguing 21st century problems were mentioned briefly, for example that of corporate crime perpetrated in the avoidance of climate change-related legislation, an area which presents a significant area in itself.

The speculative framework he does present is incredibly rudimentary. However, he concedes this point throughout the article; emphasising that his model is better viewed as a template for further work rather than an already developed thesis.

However, no matter what your intuitive stance on this topic, it would be almost impossible to outright reject it. And despite our criticisms, at the heart of this article there is something very interesting that is worth engaging with. It is well known that people are responsive to the weather, Seasonal Affective Disorder and vitamin D deficiencies being among more popular weather-related ailments. Between the assembled DA members we had an arm length list of anecdotal evidence of weather related changes in behaviour; though, all of these came loaded with provisos and caveats. However, what really piqued our interest was one DA member’s recent research which exposed a clear link between certain offences and the time of year. Obviously this raises more questions than it answers, but it is hard to observe such a persistent annual pattern and not wonder about the environmental factors at play. We felt that much more quantitative and qualitative research of this type will need to be completed before Agnew’s argument can really get off the ground.

So, the question remains: is there a need to develop a distinctly ‘climate criminology’? This article is bursting with possibilities, ideas and theories, no doubt an indication of Agnew’s own passion for this topic, perhaps if he wants to move this area forward a more singular focus should be adopted; allowing the credibility of the various facets of his argument to be excavated. What this article presents is a whistle-stop introduction to a potential new-line of inquiry, and it certainly ignited debate among the assembled DA members, we will eagerly watch to see how Agnew seeks to evolve this topic and the consequences it may have for criminology more broadly. 

To listen to Robert Agnew discuss his article click here.

This month's blog was written by Louise Brangan.

The views expressed in this blog are the author's alone.

Dire Forecast by Robert Agnew

The next meeting of the Differential Association will take place:

When: Thursday 19th April at 6pm

Venue: The back room of Mulligan's on Poolbeg Street, Dublin 2

We'll be reading Robert Agnew's recent article on climate change and whether this will have significant effects on crime, Dire Firecast: A Theoretical Model of the Impact of Climate Change on Crime.

We look forward to seeing you there to discuss this innovative article!

Upcoming - Bringing the Penal State Back In

The next meeting of The Differential Association will take place:

Date: Thursday the 22nd of March
Venue: Mulligans Pub on Poolbeg Street, in the back room
Time: 6pm

We'll be looking at an on-line lecture, Bringing the Penal State Back In, where Loic Wacquant and Nicola Lacey argue their distinct view points regarding how we understand the use of punishment.

All are welcome, whether you work in the area, or are just interested to find out more!

The Presumption of Innocence and Irish Criminal Law - Whittling the Golden Thread

Hamilton, C (2007) The Presumption of Innocence and Irish Criminal Law –Whittling the Golden Thread, Dublin: Irish Academic Press.

This week was the Differential Association's 1st birthday, and to mark the occasion we decided to read The Presumption of Innocence and Irish Criminal Law - Whittling of the Golden Thread, and the author Claire Hamilton very kindly agreed to join us for some birthday cupcakes and a lively debate!

When reading any book or article the members of the DA always try and analysis the findings in the Irish context, so it was a welcome change that we had a book that chronicled subjects that pertained to particular issues in the Irish criminal justice system.

The presumption of innocence is a core tenet of our criminal justice system as it underpins fundamental rights and procedures. As Hamilton notes, ‘in its narrowest sense, the presumption can be viewed as merely giving expression to the most prosaic evidential rules that the prosecution bears the burden of proof and that guilt must be proved beyond a reasonable doubt’. Therefore, the presumption should not be viewed as a rhetorical right, but be enshrined at the centre of our justice system.

However, recent criminal justice legislation – the Criminal Justice (Public Order) Act 1994, the anti-crime package of 1996/7 and the Criminal Justice Act 2006 – have all done a great deal to not only undermine, but erode the presumption in Irish law.

We spent most of our time discussing the provisions in the 1996/7 crime package, which we all agreed have made a significant impact on the presumption of innocence and the rights that are underpinned by it. The impetus for this raft of legislation was the murders of Garda Jerry McCabe and prominent crime journalist, Veronica Guerin. Ireland has traditionally been noted as a country which isn’t overtly perturbed by crime, yet these murders shook the nation. However, an additional crucial factor is one of timing. These murders happened just prior to a general election, and this confluence of events seemed to turn the area of criminal justice into a political battleground. While the core of the package was made up of six acts, here Hamilton examined the Bail Act 1997, the Proceeds of Crime Act 1996 and the Criminal Justice (Drug Trafficking) Act 1996.

Firstly, the Proceeds of Crime Bill eroded the presumption as it denied people access to procedural rights. The basis of this Act is that it creates a means to forfeit material and financial gains made through criminal activity. However, the Act is a civil one, consequently, through its configuration it deprives people’s right to due process protections which are afforded in criminal law. In addition, the standard of proof is on the balance of probabilities rather than beyond a reasonable doubt.

Another right connected with the presumption, the right to silence, was further downgraded in the Drug Trafficking Bill, which quite shockingly allows the court to draw inferences from the defendant’s failure to mention certain facts, facts which they later rely on as part of their offence.

However, the Bail Act has been one of the most significant and detrimental acts brought in during this wave of legislative fervour. This act allows for preventative detention, which means that a defendant can be placed in custody pending trial; this is to prevent the accused from committing further offences. This completely contradicts that presumption, the defendant has not been convicted of a crime, yet they are denied their right to liberty. The seriousness of this point should not be underestimated; the deprivation of liberty is the harshest sanction available to the state, yet people are imprisoned based on a suspicion that they may have an intention to commit a crime, which certainly does not constitute a crime. As Hamilton pointed out, this does not provide an adequate base on which to detain someone. We worried that this sort of legal assessment transposes the presumption of innocence with a presumption of guilt.

This act also has some very serious practical ramifications for our prison system. Over the last 10 years we have seen a worrying increase in our prisoner population, and it wouldn’t be too much of a leap to make some connection between this and an increase in remand prisoners. A cursory glance at Scotland's prison population should sound a serious alarm about the slippery slope of preventative detention. Scotland is a country with a similar size population to Ireland, but their prison population swelled to over 8,000 recently, which has been linked to a troubling reliance on preventative detention. In fact, right now there are more people detained in the Scottish prison system on remand than there are under sentence. This results in prisons becoming overcrowded by short term prisoners, which is hugely detrimental to the creation of meaningful penal regimes. And this is to say nothing of the economic and social cost of over-crowded prisons.

While there are those who would argue that this is a reasonable price to pay for the protection of the public, research from both Ireland and Scotland shows that only 50% of remand prisoners end up receiving a custodial sentence. Surely this evidence shines a light on the dubious foundation and unjust character of the Bail Act?

2006 saw further erosions to the presumption with the introduction of a new Criminal Justice Act. This was an extensive Bill; however, one of the most worrisome features was the provision for behaviour orders, a close to relation to its English counterpart, the ASBO. Like the Proceeds of Crime Bill, these behaviour orders were tied into civil, rather than criminal law; so the standard of proof here rests on the balance of probabilities. This has serious ramifications on the fundamental values of the justice system. In these circumstances a person is accused of what could be considered criminal activity, yet the state never has to bear the burden of proof as hearsay evidence from a Garda is considered enough to prove the alleged behaviour. Moreover, if the order is breached there is the potential to receive a custodial sentence, but because it is a civil proceeding they are not granted the due process rights inherent in criminal law. These perturbing developments have created what Hamilton refers to as a shadow legal system.

When you piece these extensive changes together: diminished right to silence; reduced procedural props; civil orders with the potential to be imprisoned without any due process rights; hearsay evidence, the picture becomes the stuff of dystopian fiction, it certainly would not be out of place in the work of Orwell or Kafka.

The question we all asked was how to row back on such harsh legislation, and re-establish the presumption of innocence at the centre of our justice system? Some people highlighted findings that showed that if the public were given more information they are actually more lenient than the judges. Or research which finds that, contrary to intuition, increased civic engagement and democratisation of the policy-making process could help develop a fairer justice system.

A significant barrier to any change is that in Ireland these laws are founded on the believe that the criminal justice system had tipped too far in favour of the defendant, and that in fact, by undermining the presumption of innocence we are actually strengthening our justice system. Michael McDowell, who was quite unrelenting in achieving his vision of law reform, succinctly stated when it came to the criminal justice system, ‘the balance has shifted too far in favour of the accused’. The rights of the accused have been placed in direct opposition to the rights of society, and it appears that the presumption of innocence has borne the brunt of this antagonistic discordance. Essentially, the legislative changes that are detailed in the book appear to be premised on the notion of the criminal 'other'; this seems to be a fundamental driving force behind the devaluation of the presumption. As such, there is no need to be concerned about diminishing due process rights and procedural props, as that is the law for them, it won’t affect us, the law abiding public. As a result, trying to muster up the political appetite for these legislative row backs will prove to be a sizeable challenge as long as we understand our criminal justice system in such clear-cut dichotomous terms.

However, we also wondered if part of the problem was a lack of political comprehension about the importance of fundamental principles such as the presumption of innocence. Of course it would be easy to decree that such harsh and punitive outcomes are solely the result of harsh and punitive intentions; however many DA members believed that this didn’t provide a full explanation of how the presumption of innocence has been incrementally reduced to a paper tiger. The 1996/7 crime package certainly provides plenty of material for debate, given that it contained provisions that were among the most destructive to the presumption. However, this moral panic emerged shortly before a general election, it was suggested that given the timing, opportunistic opposition politicians made a land grab. Rather than being motivated by a punitive ideology, politicians viewed criminal justice as a valuable area of public interest, and potential votes. Perhaps if the murders that incited the media frenzy had happened at a time more removed from a general election a more considered and measured response could have been employed. If this had been the case, the terrain of Irish criminal justice could look very different; with the presumption of innocence remaining a strong pillar of our justice system. An important lesson to be taken from this is that short-term moral crusades can yield long-term damages to our civil liberties.

Another important thread that emerged from our conversation (one that appears to be becoming an emergent trend in DA discussions) was about how important it is to root studies of these types of dramatic policy change in their local contexts; whether they be cultural, political or historical. While similar changes to the presumption of innocence may be simultaneously occurring in other western jurisdictions, the character and the nature of these changes were distinctively Irish; they were driven by events and changes in public mood and temper that were uniquely Irish, and shaped by Irish political actors. There was a broad consensus that despite a trend towards convergence in criminological explanations of penal and legislative transformation, that policy-making remained rooted in the local factors; and that to understand changes in criminal justice procedures we must foreground our research in the national context.

Surely this is one of the most important contributions of Claire Hamilton’s book, it is an informative and insightful contribution to the burgeoning area of criminology and criminal justice studies in Ireland. Moreover, it is evident that the erosion of the presumption of innocence has had some very serious consequences, and it should not disappear without at least an attempt at an informed debate. We hope that by shining a much needed investigative light on this issue, that Whittling the Golden Thread may contribute to a wider discourse about the fundamental values of the Irish criminal justice system.

This month's blog was written by Louise Brangan.

The views expressed in this blog are the author's alone.