ESC Conference Prague 2014ESC Conference Prague 2014

Legitimacy, Mitigation and Guilt: What do Pre-Sentence

Investigations Achieve ?

Cyrus TataCyrus TataStrathclyde Law School, ScotlandStrathclyde Law School, Scotland

Cyrus.Tata@strath.ac.uk

Official PurposesOfficial Purposes

Relevant personal & social circs info Relevant personal & social circs info for the court to assist sentencing for the court to assist sentencing

Quality, ideological shifts, influenceQuality, ideological shifts, influence Perpetual anxiety about actual Perpetual anxiety about actual

impact – mere empty symbolism?impact – mere empty symbolism?

What else do PSIs do?What else do PSIs do?

Accelerate case ‘disposal’ through Accelerate case ‘disposal’ through expressive moral performanceexpressive moral performance

PSIs Manage PSIs Manage the the FeltFelt Gap Problem Gap Problem

Justice In the Books vs ActionJustice In the Books vs Action But How do professionals cope?But How do professionals cope?

Sense of Guilt / Sense of Guilt / DiscomfortDiscomfort

Starting point: we like to see Starting point: we like to see ourselves in positive light and through ourselves in positive light and through how we believe others perceive ushow we believe others perceive us

Justification is inherent in inter-Justification is inherent in inter-personal encounters (Levinas)personal encounters (Levinas)

Finding ways of justifying changes in Finding ways of justifying changes in profl action once deemed wrong profl action once deemed wrong (eg Tata (eg Tata 2007 legal aid)2007 legal aid)

Awkward Awareness of gapAwkward Awareness of gap

Sense of Professional Sense of Professional GuiltGuilt

““On a practical level sometimes you don’t On a practical level sometimes you don’t have as much time when you’re doing have as much time when you’re doing summary criminal legal aid work summary criminal legal aid work as you as you perhaps should perhaps should have with individuals”have with individuals” [def [def lawyer intv 10, psr study]lawyer intv 10, psr study]

‘‘It’s just a Factory’It’s just a Factory’ ‘‘Not what it was’Not what it was’ Could and should be better but resourcesCould and should be better but resources Explanations to novices (eg also Explanations to novices (eg also

socialisation)socialisation)

Displaying Fair JusticeDisplaying Fair Justice

Summary process notoriously abrupt – legit gapSummary process notoriously abrupt – legit gap Reliance on admission of guilt (plea/confession) Reliance on admission of guilt (plea/confession) beingbeing seenseen as a free decisionas a free decision

‘‘Dirty work’ (Hughes 1951/58/62; Ashforth & Dirty work’ (Hughes 1951/58/62; Ashforth & kreiner ) kreiner )

““Visceral repugnance” Visceral repugnance” ButBut soc constructed standards of cleanliness soc constructed standards of cleanliness

and purity (Douglas 1966)and purity (Douglas 1966) Seen as both necessary and potentially

polluting

Physically DirtyPhysically Dirty

Physically DirtyPhysically Dirty

Social Dirty Work?Social Dirty Work?

Moral Dirty WorkMoral Dirty Work

PSIs PSIs DisplayDisplay Process Process FairnessFairness

Present a Present a displaydisplay of humanity, dignity & unique of humanity, dignity & unique individualisationindividualisation

Participation - a ‘voice’ where otherwise noneParticipation - a ‘voice’ where otherwise none

Complaints/ ridicule also celebrate Complaints/ ridicule also celebrate apparent individualisation apparent individualisation

‘‘Context’: performs legal justice’s nod to distributive Context’: performs legal justice’s nod to distributive justicejustice

Closure through Closure through the display of the display of opennessopenness

Morally Dirty work of Morally Dirty work of PSIsPSIs

What makes it ‘dirty’?What makes it ‘dirty’? Challenges RoL justice images (eg freely Challenges RoL justice images (eg freely

admit)admit) Protective functionProtective function Cleansing Cleansing DelegatedDelegated Morally dirty work is kept back-stageMorally dirty work is kept back-stage Enables Justice Professionals to see Enables Justice Professionals to see

themselves perform as they would preferthemselves perform as they would prefer

Moral Cleansing Work Moral Cleansing Work Prepares Cases for ClosurePrepares Cases for Closure

Disruptive / ResistantDisruptive / Resistant Straight denial (factual)Straight denial (factual) Threat of worse Threat of worse (trial tax, (trial tax,

remandremand))

Unsure/confusedUnsure/confused Fatalism / ArbitrarinessFatalism / Arbitrariness Conscious non-Conscious non-

engagementengagement Exculpation / moral Exculpation / moral

challengechallenge

Open Open

Facilitating / CompliantFacilitating / Compliant AdmissionAdmission Tactical / game playingTactical / game playing In denial - Work to be In denial - Work to be

donedone Accepts it’s InevitableAccepts it’s Inevitable ResponsibilisedResponsibilised Transformation or Transformation or

implicit condemnationimplicit condemnation

ClosureClosure

ConclusionsConclusions

Inform, advise, Inform, advise, but alsobut also

Generally (but not always) manage Generally (but not always) manage the felt gap problem enabling sense the felt gap problem enabling sense of moral closure of moral closure

Largely legitimating but also reopen Largely legitimating but also reopen moral problemsmoral problems

Further QuestionsFurther Questions

1.1.Therapeutic/Cathartic Therapeutic/Cathartic but for whombut for whom??

2.2.Are mass ‘free’ admissions Are mass ‘free’ admissions universal?universal?

3.3. Judicial Judicial Sense of Sense of PF by diff means? PF by diff means?

4.4.Does Low sense of PF lead to legit Does Low sense of PF lead to legit strain?strain?

5.5.Do PSIs make it more or less likely Do PSIs make it more or less likely to ‘Punish in Bad Conscience’ ?to ‘Punish in Bad Conscience’ ?