What are the Obstacles to a Rational Criminal Justice Policy? It is often wondered why we do not have a more rational, evidence-based system of criminal justice. All the evidence points towards a more targeted use of imprisonment, a joined up system of criminal and social justice and improved resourcing for community penalties and community services. Yet a key reason which prevents justice policy from proceeding rationally is the fear of looking ‘soft’ in the eyes of the public. People feel let down and angry about a system which seems uninterested in showing justice to be done, publicly recognising the wrong, encouraging the wrong-doer to to face up to the wrong, and make amends. Is there any way out of this policy quandary? Here we propose that a key public frustration, which drives cynicism and penal populism, lies in the failure of criminal justice to engage, and be seen to engage, in emotionally-intelligent communication. Too often the process appears sterile, lacking emotional meaning and participation. Mention of ‘emotion’ in law sometimes rings alarm bells. Our argument, however, is that emotionally-intelligent communication is not opposed to, but essential to, rational and progressive policy

Jamieson, Fiona

Tata, Cyrus

University of Strathclyde Institutional Repository

Tata, Cyrus and Jamieson, Fiona (2017) Just Emotions? The need for emotionally-intelligent justice policy. Scottish Justice Matters, 5 (1). pp. 32-33. ISSN 2052-7950 , This version is available at http://strathprints.strath.ac.uk/60476/Strathprints is  designed  to  allow  users  to  access  the  research  output  of  the  University  of Strathclyde. Unless otherwise explicitly stated on the manuscript, Copyright © and Moral Rights for the papers on this site are retained by the individual authors and/or other copyright owners. Please check the manuscript for details of any other licences that may have been applied. You may  not  engage  in  further  distribution  of  the  material  for  any  profitmaking  activities  or  any commercial gain. You may freely distribute both the url (http://strathprints.strath.ac.uk/) and the content of this paper for research or private study, educational, or not-for-profit purposes without prior permission or charge. Any correspondence concerning this service should be sent to the Strathprints administrator: strathprints@strath.ac.ukThe Strathprints institutional repository (http://strathprints.strath.ac.uk) is a digital archive of University of Strathclyde research outputs. It has been developed to disseminate open access research outputs, expose data about those outputs, and enable the management and persistent access to Strathclyde's intellectual output.Volume 5 | Number 1 | April 20179 772052 795005ISSN 2052-7950RESTORATIVEJUSTICE32 Scottish Justice Matters : April 2017JUST EMOTIONS?Cyrus Tata and Fiona Jamieson on the need for emotionally-intelligent justice policyCURRENT ISSUESWhat are the Obstacles to a Rational Criminal Justice Policy?It is often wondered why we do not have a more rational, evidence-based system of criminal justice. All the evidence points towards a more targeted use of imprisonment, a joined up system of criminal and social justice and improved resourcing for community penalties and community services. Yet a key reason which prevents justice policy from proceeding rationally is the fear of looking ‘soft’ in the eyes of the public. People feel let down and angry about a system which seems uninterested in showing justice to be done, publicly recognising the wrong, encouraging the wrong-doer to to face up to the wrong, and make amends. Is there any way out of this policy quandary? Here we propose that a key public frustration, which drives cynicism and penal populism, lies in the failure of criminal justice to engage, and be seen to engage, in emotionally-intelligent communication. Too often the process appears sterile, lacking emotional meaning and participation. Mention of ‘emotion’ in law sometimes rings alarm bells. Our argument, however, is that emotionally-intelligent communication is not opposed to, but essential to, rational and progressive policy. Emotional IntelligenceJustice is a basic and universal emotional need. Developmental psychology shows, and every parent can attest, that it is a powerful force from very early childhood. For justice to be to be done, the wrong must be acknowledged, the harm validated, the parties listened to, and participate. To be legitimate, justice has not only to be done but be shown to be done. This necessitates much more than courtrooms being open to the public. It must mean an emotionally-intelligent conception of justice policy. Just Eiciency?If it sounds obvious that justice policy should be emotionally-intelligent , consider how our justice system tends to devalue meaningful communication with court users. We have been operating on an ‘outcome’ driven conception of eiciency. The overwhelming majority of criminal court cases result in guilty pleas in which neither victim nor ofender barely speak. A key complaint of both victims and ofenders is about not having a chance to participate and feeling processed like an object (Jacobson et al, 2015. Of course, everyday, many individual professionals make valiant eforts to communicate meaningfully with court users, but they do so despite the system’s incentives, not because of it. It has long been recognized that the tasks of judging and sentencing are very human interactions with emotive and affective dimensionsNot only that, but in the last decade a seismic change has occurred almost without public awareness or debate. The huge expansion in out-of-court ‘ofers’ of settlement by the Executive branch of the state (prosecution and police) means that for the irst time more cases are ‘disposed of’ by ‘Direct Measures’ (DMs) than through court (Matthews 2016). Of course, there can be a place for DMs and many cases need not be prosecuted through court. Indeed, there is potential to use DMs creatively Nonetheless, this huge expansion comes at a cost. Importantly, DMs are diversion from court not from the criminal justice system. Although a DM is not a criminal conviction and technically an ‘ofer’, many people are unaware that a DM may form part of one’s ‘criminal history’ appearing in disclosure records and barring people from employment. The drive to use DMs cannot address the sense that all the system is interested in is ‘disposing’ of cases rather than participation, and facing up to the harm: showing justice to be done. Most academic, policy and practice thinking is dominated by a very narrow conception of eiciency. Yet recent research asking users of the justice system about their experience, shows that how people are treated matters to them as much as ‘the outcome’ (for example, Jacobson et al, 2014). Dig a little Scottish Justice Matters : April 2017 33CURRENT ISSUESdeeper and it becomes apparent that victim and ofender experiences of the process and how they feel about it, is an outcome as important as the formal ‘disposal’ such as a court sentence. Towards Efective CommunicationWhile there have been some improvements in reccent years to the experience of victims, there has been less policy interest in the experience of accused persons. Knowing more about their experience may help to develop rational policy. Many minor repeat ofenders fail to comply with the terms of a community sentence, evoking public and professional frustration, which can result in a cycle of short-term imprisonment. Research has been guilty, until recently, of paying little attention to the experience of the accused in the justice process usually ‘reading of’ their experiences from what others say. If we are to address the problem of compliance with community penalties and the costly cycle of minor ofenders returning to prison, we need to know much more about how they perceive and understand the justice process. For example, when someone a person is sentenced how does that person understand and interpret the terms and the purpose of that sentence? Does it accord with what was intended by the judge and by those implementing the sentence such as social workers and prison staf? One would think, and research suggests, that efective communication should develop the person’s accountability for the crime, motivation to comply and try to move away from ofending (Berman and Feinblatt, 2015) Yet do we really know what makes penal communication efective or inefective? The annual cost of the unnecessary processing and re-processing of people through the courts and of reofending is estimated by the Scottish Government to be at least £3m and £10bn respectively. By improving our understanding of efective communication it may be possible to reduce the human and inancial cost. Emotionally-Intelligent EiciencyThere have been several initiatives to make penal communication more emotionally- intelligent. Because of its focus on participation, clearly recognizing the harm done, and, crucially, requiring communicative accountability, such as an explanation, from the person who caused the harm, restorative justice exempliies an emotionally intelligent process. Typically, in our system when a person pleads guilty there is little direct explanation ofered to the person harmed. Restorative Justice has potential to show justice being done at least to the parties, and by raising awareness about its existence, in general terms, to the public. Of course, since restorative justice is not in a public court, there are limits to this communication being heard openly. Another example of emotionally-intelligent justice which is heard openly can be found in the Problem-Solving Courts (PSCs) approach. A PSC seeks to address the underlying causes of the ofender’s behavior such as addiction, through judicial ongoing monitoring in a multi-disciplinary court (Tata, 2013) In the US, PSCs have been advocated and led by members of the judiciary frustrated by a sterile and counter-productive system obsessed with case disposal.It has long been recognised that the tasks of judging and sentencing are very human interactions with emotive and afective dimensions. However, penal discourse about judging commonly depicts reason and emotion as opposite forces in judicial conduct. Moreover, because of the strong value placed on the neutrality and independence of the individual judge, control of judicial emotion is central to understandings about ‘good’ judging, perhaps to a greater extent than any other actor in criminal justice (Jamieson, 2013). This strict separation drawn between reason and emotion is contradicted by research which points to the inter-connectedness of these capacities and suggests that emotions are central to good decision-making: they help produce ‘empathetic impartiality’ and should not be regarded simply as obstacles in the way of rationality. Judges acknowledge the presence of emotions in their sentencing work but in di cult cases, such as serious sexual violence towards children, report a range of strategies they employed on occasion to manage the efects (Jamieson, 2013). This, and other research, supports a more rounded conception of judgement which recognizes the interconnectedness of rationality, intuition and emotions.We can conceive of two ways of thinking about eiciency. The irst can be called ‘disposal eiciency’. This assumes that volume of case disposal in relation to efort equals ‘eiciency’. and is simple to measure. The disadvantage is that it forgets the goal of ‘eicient justice’ should be self-evident: to produce justice. Eiciency is, as Utilitarian philosophy argues, always about achieving a morally desirable goal. We propose a second conception of eiciency, namely: ‘emotionally-intelligent eiciency’. This focuses not only the volume of ‘disposals’, but value-for-money including enabling participation, dignity, the harm being faced up to by the ofender, and justice being shown to be done and thus seen as legitimate. ‘Emotionally-intelligent eiciency’ is essential to reversing public cynicism and distrust of the system. Policy cannot aford to dispense with the emotional heart of justice. It is only through emotionally-intelligent eiciency that criminal justice policy has any sustaintable chance of moving forward rationally.Cyrus Tata is professor of criminal justice at Strathclyde Law School.Fiona Jamieson is senior teaching fellow at Edinburgh Law School.Berman G and Feinblatt J (2015) Good Courts: The Case for Problem-Solving Justice Quid Pro BooksJacobson J, Hunter G and Kirby A (2015) Inside Crown Court: Personal Experiences and Questions of Legitimacy Policy PressJamieson F (2013) Narratives of crime and punishment: a study of Scottish judicial culture. Unpublished PhD thesis.Matthews B (2016) ‘Comparing Trends in Convictions and Non-Court Disposals’ Scottish Justice Matters 4(1):36-37Tata C (2013) ‘Beyond the Revolving Door? Is it Time for Problem-Solving Courts?’ Scottish Justice Matters 1(1):17-18Foundation Skillsin Restorative PracticesIntensive Course 5-9 June 2017University of Strathclydehttps://goo.gl/delDy0Course leader:Tim Chapman(University of Ulster; Chair, European Forum for Restorative Justice).“The course was great! I really enjoyed the creative culture of learning. It has been a really worthwhile experience.” Ella Brown, Criminal Justice Social Worker, North Lanarkshire“I consider Tim Chapman to be the best educator in his ield and cannot recommend him highly enough.” Martina Jordan Restorative Practitioner & Trainer“This is, in my opinion, one of the best and most serious and comprehensive course there is for Restorative Justice Practitioners in Europe, if not the world, today.” Dr Estelle Zinsstag, Senior Researcher, University (K.U.) Leuven, Belgiumwww.scottishinsight.ac.uk/Programmes/Learningfromotherplaces/RestorativeJustice.aspxTo join the Restorative Justice Forum (Scotland) or be  added to the mailing list, contact rsuszko@sacro.org.uk @RJinScot   #RJinScotland20 April 2017 Edinburgh RJ and desistance15 June 2017 Glasgow RJ and homicideOctober (tbc)  Day conferencesFurther events to be announced.PUBLIC DIALOGUES ON RESTORATIVE JUSTICE

Just Emotions? The need for emotionally-intelligent justice policy

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