We Need a New Model of Emotionally Intelligent Justice – David Patton

We Need a New Model of Emotionally Intelligent Justice

David Patton

Justice Power Love

My name is Dr. David Patton and I work as a Criminologist in England. I would like to suggest in this article that the current models of justice that dominate the Criminal Justice System (CJS) in England are promoting more harms than goods and perpetuate further violence and inequality. I believe that a new paradigm of justice is needed. Throughout history we have witnessed periods where justice has been reimagined and reinvented. My observation is that we are at another hinge point in history. We are witnessing the collapse of the ‘old’ structures, systems and institutions and so within this context there is also the opportunity to reinvent justice. One that is based on a love ethic to create an ‘emotionally intelligent’ model of criminal justice.

It is very tempting to focus on criticising the current CJS in England and Wales and its dominant approaches. To evidence that it does not work. For example, in 2021 the Ministry of Justice statistics show that the proven reoffending rate for adult offenders released from custody is 44%, increasing to 60% for those sentenced to less than 12 months in prison. Further, 60% of juveniles released from custody also reoffend within a year of release. The average annual cost per prisoner being housed in prison is £28,974 – £38, 991. The average number of reoffences committed per person is 4 known offences. The ongoing collateral harms to victims as a result of the crimes committed against them can not be adequately measured. Further, the ongoing negative ripple effect to those convicted of a crime continue years after their sentence has been completed. It is easier to critique than to offer an alternative. It is always a creative and vulnerable endeavour to articulate something new. However, I have decided to be vulnerable and share some of my early thoughts on ‘what’ an alternative may look like.

In addition to being a Criminologist, I also work as a Life coach. One of the key messages that I give to clients when setting a new goal or vision, is to focus at least initially on the ‘what’ rather than the ‘how’. If you look at the ‘how’ too soon, you will almost certainly never come up with the very thing that needs to be done. So, this article will look predominantly at the ‘what’. It is hoped that some of your input in the comments to this post may help point to some of the ‘how’, as well as helping me refine my thoughts further in relation to the ‘what’.

As I write this post, looking at the gap between where things currently stand and where I believe things can and could be, is intimidating and scary but, I am determined that it should not deter me from suggesting it. My intention is that this post can hold space for the realisation that we are off track, that change is desperately needed and possible. Therefore, new definitions and models of justice are needed.

Where are we now?

The CJS is dominated by negative responses and reactions to crime and criminality that are focused on retributive punishment, exclusion, labelling and shame. Justice is administered in an adversarial court system in England, which is premised on conflict, opposition and the presumption of guilt. The dominant models of criminal justice, namely the models of Crime Control, Status Passage and Power promote further violence and exclusion, and cannot succeed in attaining the much-needed results of a new form of justice. The Crime Control model is defined by its social function of punishment and its creation of high conviction rates due to its disregard for legal controls, support of the police and implicit presumption of guilt as well as the desire to highlight the unpleasantness of the experience for the offender. The Status Passage model is defined by its social function of denunciation and degradation along with its focus on public shaming and asserting the agent’s control over the process. The Power model is defined by its social function of maintenance of class domination thereby promoting the labelling, stigmatisation, alienation and punishment of large classes of people.

The political and public discourses, social constructs, and moral panic that need to be created and maintained in order to justify the continuance of the above models are based on fear, hate, condemnation, labelling and stigmatisation. They foster a ‘them’ and ‘us’ mindset, highlighting ‘risks’ to the majority, which in turn typically evoke negative emotions and responses from the general public towards the ‘other’/criminal, and also, importantly can only evoke negative emotions and responses from those on the receiving end of the punishment provided by each of the above models. When the models are administered in an adversarial system this only serves to entrench the patterns of negativity and violence.

A call to action

Therefore, there have been repeated calls by many to redesign justice and to move away from retributive justice and punitive justice so that criminal justice is positive, unitive, peace-making, transformative, emotionally intelligent, intuitively intelligent, and community based. Further, many of the civil rights and social justice movements that have advanced notions of justice have been based on an ethic of love and a non-violent approach.

It has become clear as Albert Einstein stated, ‘We cannot solve our problems with the same thinking we used when we created them.’ We need a different approach. Fundamentally, in order for a new paradigm of justice to happen, love needs to expand beyond the confines of personal relationships, to become a collective force, framework and strategy for social and political change to help formulate new models of justice. It is not a sentimental emotion. I believe the ingredients for this new paradigm and model of justice are encapsulated in the words of Martin Luther King when he said: ‘Power at its best is love implementing the demands of justice, and justice at its best is power correcting everything that stands against love.’

A triad of love, power and justice needs to be reconstituted to create a new paradigm of criminal justice. We are currently witnessing a demise of the old definitions of power, as ‘power over’ and domination, and of justice that only serves the interests of the privileged, and so across the globe we are witnessing events that are redefining notions of power and justice with for example, the MeToo movement, the Black Lives Matter movement, climate change, etc. The model of emotionally intelligent justice would seek to dismantle the negative and corrupting effects of a ‘white-supremacist capitalist patriarchy’ as stated by bell hooks.

Inputs

In order to understand why the system is creating such negative outcomes (at least for some in society) we need to explore the types of inputs into the CJS. Garland has observed that different modes of penal power act as inputs in to the CJS that produce different outcomes. He believes that negative penal power is incapacitating, whilst positive penal power is capacity building:

‘Penal power takes different forms and may be oriented toward different ends. The power to kill, the power to incarcerate, the power to supervise, the power to levy fines, the power to transform individual conduct, and the power to transform families or communities are distinct forms, and they each may be deployed as means to different ends.’

When reviewing official government data, the following outputs are created as a direct result of its inputs: the CJS is clearly oriented towards punishing the poor, males, those with low educational attainment and special educational learning needs and disabilities, and those with mental health issues. There is also an over-representation of Black and Asian males in the system who are also more likely to be sent to prison and serve longer prison sentences. Such outputs creates the question, ‘what inputs (modes of penal power) create such outcomes? There are constant calls for the CJS to be reformed but, the CJS isn’t broken, rather it was crafted and systematically and structurally engineered to produce such results. The results produced are not just current trends but are also historical. The different forms of penal power create accompanying discourses and hegemonic narratives as justifications for its actions. Within such narratives, justice is equated with retribution and punishment, power is equated to the state exerting punitive and incapacitatory powers over socially constructed deviants, and notions of love are mocked or more accurately absent.

Inputs are are first conceived with the ideational philosophies that relate to key questions such as ‘who is a criminal?’ and ‘what is a crime?’ Philosophies, ideologies and paradigms built upon subcultural understandings or a criminal type or deviant who is significantly different to the majority promote a deficit model that pathologises people with specific characteristics which then legitimises the legislative framework that permits them to be policed and punished. This leads onto the creation of a web of actors, agencies and institutions with a series of related practices that are in alignment with the subcultural, pathologizing and punitive philosophy/ideology.

Means inherent in the ends

At present we have structures, systems and institutions that are dominated by negative inputs. Yet, somehow, an expectation is promoted within this context that says that after a duly punished person who has journeyed through the ‘negative’ penal system, that they should come out at the other end, as a well-adjusted and reformed person. One who is ready to make a positive contribution to society, participate fully within it and not commit any further crimes or cause harms in society. This makes no sense!

The observation by Ghandi that ‘An eye for an eye only ends up making the whole world blind’ highlights the fact that a negative act, responded to in a negative way can only produce a further negative result. This is in part what we are witnessing at present with the CJS. Martin Luther King noted ‘For through violence you may murder a murderer, but you can’t murder murder. Through violence you may murder a liar, but you can’t establish truth.’ What is needed is an input/response of a different kind, he said ‘Hate cannot drive out hate; only love can do that.’ If we want to see a different result in relation to crime, recidivism and more specifically justice, then a different input, approach and response is needed from the State, the CJS, and society. In addition, if we want to see a different result, one that is positive, then it is advocated here that the input needs to be positive in nature to ensure that the means are inherent in the ends in order to provide the much needed congruency and alignment with the desired positive outcome.

Metrics

If we accept that the means are inherent in the ends, then we need to redefine the ends (the metrics) of justice and of the CJS. At present the CJS almost exclusively focuses on recidivism as a prime metric to measure the success of a criminal sanction. A paradigm change is needed in relation to the metrics of the CJS so that we judge the CJS not by the the harms the system prevents but rather by the goods that it creates. The suggestion here is not that recidivism should be removed as a metric but, rather become one of a larger range of metrics of justice. The range of new metrics would focus not on the cessation of the negative but, the creation of the positive, (and therefore also indirectly achieving a reduction in recidivism). This shift will require fundamental shifts in perceptions, understandings and paradigms of justice, power and love.

If the patterns of fear, control, ‘power over’ and punishment continue to be repeated, this will do little to alleviate the negative cycle of violence perpetuated by the CJS or foster the creation of new metrics of justice. It is advocated here that a new paradigm is needed to allow for model(s) of emotionally intelligent justice that will allow for the creation of an emotionally intelligent CJS. New theories, paradigms and approaches need to be created and developed further, and existing ones brought to the fore to support the creation of such emotionally intelligent models of justice.

Suggesting an alternative

I recently conducted a research project exploring the hopes and pains of desistance. The written diaries of 43 male prisoners were analysed to explore how they viewed their future self and future lifestyle post release. In the research it was argued that their diaries were a form of utopian literature due to their expressed desires for a better way of living and of being. The hopes expressed within their diaries revealed a vision that was not just personal but inherently political and transformative in nature due to the envisioned future that they sought to experience at the personal and societal levels. The respondents were not just hoping to stop offending, to find employment, or a place to live, find a life partner, or to study or settle down, etc, but rather, also pointed to something deeper, something beyond themselves and something radical. Their inherent goal in desistance was not just to ‘go straight’ but to ‘go somewhere new’.The society they envisioned was one of acceptance, inclusion, transformation, reconciliation and restoration, of second chances, reparation, generativity, achievement, contribution and participation. In contrast, the pains of desistance identified in their diary entries were of shame, stigma, rejection, exclusion, surveillance, goal frustration, disappointment, self-isolation, goal failure, and hopelessness. Such pains provide a harsh commentary, reveal a significant critique and condemnation of where we currently are, and identify what is lacking in our structures, systems, institutions, policies, practices, perceptions and relations.

The type of society the respondents hope for and one that can accommodate the realisation of their personal hopes is radical. The new vision of society that we envisioned based upon their diaries is not for a perfect or Hollywood-ised mode of living. It acknowledges that people make mistakes, cause harms, can behave in self-destructive ways, have estranged and negative relationships and so on. However, such a radical society can accommodate those who are engaged in a negative and downward spiral of behaviours and importantly have within it, structures, paradigms and pathways for re-entry, full participation and for human flourishing to be regained. They envision a more inclusive, emotionally intelligent and fairer society. Reform is inadequate in the face of such a radical vision which rejects some of the fundamental principles that govern our societal structures to create something new. Such a radical agenda requires changes at the penal, political, and public and not just personal levels. The respondents’ hopes embody both an individualistic and personal utopian vision for themselves, and in order for this to be realised they inadvertently provide a collective vision of the communities and society or world that is yet to become.

Table 1

The new model of emotionally intelligent justice that I am in the early stages of thinking about and am proposing in the right-hand column in Table 1, is built upon a foundation of a love ethic to inform paradigms, policies and practices. The model is intelligent and as such does not seek revenge, to harm or diminish but to repair, restore and transform. It acknowledges the harms created as a result of negative behaviours and holds the person accountable for them. It is non-violent in its approach and is focused on inclusion and integration at the micro, meso and macro levels. It seeks to put an end to the patterns and forces of division, separation, exclusion, excessive punishment, shaming and humiliation etc. currently dominating notions of justice. It recognises that these are some of the very forces and mechanisms that have contributed to the problems in the first place. Instead, it utilises positive encounters and forces in offering a transformative experience. The model also seeks to raise the emotional intelligence and awareness of its staff of the therapeutic or anti-therapeutic effect of their words, actions, decisions and working practices/systems/structures. It is informed by all of the voices of those affected by crime and criminality to deliver justice for all. Further, it has a congruence between its aims, means, theories, values and the principles upon which it is based and the positive outcomes it aspires to produce.

A few examples of existing practices that encapsulate some of the features of the above model would be Therapeutic Jurisprudence courts whereby staff are sensitive to the therapeutic or anti-therapeutic consequences that their actions and decisions can foster, strengths-based models of practice, e.g. the Good Lives Model that seeks to enhance key strengths and talents and promote goal attainment; self-help, recovery groups and the 12 steps which provide accepting and empowering spaces and relationships through positive pro-social modelling to support one another; restorative justice and victim and offender mediation schemes which seek to repair the harms caused by increasing awareness and promoting responsibility for actions taken whilst leading to social integration. The list is not exhaustive, and clearly new agents and agencies would need to be created to help operationalise the emotionally intelligent model of justice. Ultimately, this would also require the creation of a web or networked agencies working in alignment with the method and values of the new model of justice.

Thoughts

In order for the above model to be adopted by the criminal justice system it would require a radical shift in its approach, requiring seismic shifts in its philosophy, aims, values, policies and practices. I am aware that some would say it is naïve to think that such a model will ever be adopted. I am at a point where the evidence demonstrating that the current system is not working is so overwhelming that it is naïve to think that the system can keep doing what it has been doing, reproducing the same negative cycle of results and promoting continual cycles of structural violence. I don’t know how such a change will occur but, I think people are beginning to wake up to the reality that justice is not delivering what is desired. I am keen to hear your thoughts on the above model. What features or perspectives need to be added or considered to the proposed model of justice? What are the particularities of criminal justice in your own community? How are they similar/different to the system we have in England? I would welcome your thoughts, reflections and comments and so I invite you to drop me an email at d.patton@derby.ac.uk so that we can keep exploring the notion I propose here of emotionally intelligent justice.

David Patton is a Senior Lecturer in Criminology at the University of Derby in the United Kingdom.


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