Five priorities for the world’s justice systems
In part one and two of this series, I examined the array of pressures that developed country justice systems are likely to face in the coming year – and argued that most countries find themselves overwhelmed, despite falling crime rates. In 2017, several jurisdictions will inevitably just fire-fight but there are vast rewards for those countries that are willing to ask – and answer – five fundamental questions:
1: Who should deal with crime and cyber-crime in particular?
Too many inside and outside government labour under the illusion that criminal justice agencies control the main levers of crime reduction. The truth, however, is that business and citizens themselves have considerable influence – as their actions dramatically shape and reshape the number of easy opportunities for crime. A prime example of this would be the way that car crime plummeted in the 1990s and 2000s largely due to improved security measures introduced by government manufacturers, who in turn were responding to consumers starting to take an interest in car security. Government still has clout, of course. Active regulation was a vital trigger for manufacturers to take action – those countries who mandated electronic immobilisers benefited from from much quicker falls in crime than the US and other more reluctant regulators.
There are therefore important debates to be had about how to balance responsibility for tackling any crime between government, business and citizens – and we need to recognise the role of government as a crime reduction regulator, not just a legal enforcer. The question of who does what feels particularly urgent for cyber crime. Technology has huge potential to reduce crime but it’s far from clear that government has the right skills – or frankly anywhere near enough resources – to take a major role in cyber crime prevention. Businesses can, and already do, make major investments in protecting their customers and they often work – though they could of course do more. Citizens – and I include my family in this! – are, by and large, pretty hopeless – taking extraordinary online risks, partly because they are assuming (rightly) that banks will continue to bail them out if they are victims of fraud, and perhaps underestimating the harm that can be inflicted by cyber-bullies or malware. Will – and should – business take on all the burdens of preventing cyber-crime, and what is the right regulatory framework to encourage effective cyber-crime prevention? Should insurers stop paying out if consumers themselves do the digital equivalent of leaving the back door open? What is the niche that government should occupy in terms of enforcement – and which parts of the justice system (if any) should be involved?
There’s something slightly uncomfortable about leaving companies (particularly smaller ones) to manage these cyber threats alone – and to leave many serious offences unpunished – but the alternative of vast national cyber crime agencies seems less appetising than highly tailored and expert support for specific and carefully defined government roles.
2: How much punishment can society now afford?
If politicians believe the myth that you can have tough sentences but not use them, they will continue to ramp up sentence lengths and put pressure on an already overburdened system rather than investing more effective preventative policing measures: interventions to support would be and current offenders away from crime, and steps to reduce criminal opportunities through product and environmental design.
Crime must face consequences in order to satisfy public pressures, to ensure ‘justice’ (whatever that illusive concept means!) and to maintain a degree of deterrence. But given the vast slew of evidence about the ineffectiveness of tough punishment as a means of preventing crime and saving future victims, smart countries are thinking about how they can rebalance spending away from warehousing prisoners for ever longer periods, particularly for those offenders who are a much lower risk to society. The disproportionate impact of tougher sentencing on ethnic minorities makes this issue particularly urgent, but the right strategy for ‘decarceration’ requires an astute management of politics as well as practical considerations. A warning: many measures intended to curb increases in prison populations have perverse effects. For example, ‘new, tough community sentences’ have often been handed out those who would previously have received fines or lighter community orders.
3: How can we better predict and resource criminal justice system workloads?
Small changes can have big impacts on correction system workloads – as evidenced in the change in prisoner numbers resulting from Australia’s bail law reforms. Many countries – the Netherlands and the UK are two strong examples – have developed reasonable ways of anticipating the impact on court and corrections workloads but too often even these countries announce new policies before their costs and benefits are properly thought through. In a world of scarce resources, governments can’t afford to leap before they look so must develop models that anticipate policy impacts even more effectively than now, and ideally find ways of testing policy reform impacts in the real world before launching them at scale. If they do not, they will likely find themselves locked into policies that have perverse real world effects and are tricky to back out of.
Linked to this, we need to match local resources to real levels of demand. Tom Kirschmaier and others at the LSE’s Centre for Economic Performance have been examining police funding in England and Wales and found that the current system of area based funding still bears very little relation to true patterns of demand. The same is true everywhere, as far as I know, and it is frankly a legacy of pork-barrel politics and corruption. Getting funding right also requires a much more sophisticated way of spotting when funding constraints are creating unpalatable problems – and before issues develop into full-blown crises. Without this, they will simply cut too far (as happened in UK prisons) then end up spending more to make up lost ground. The Institute for Government has developed some basic dashboards for the UK but all governments will need to go into further depth while avoiding bureaucratic performance management nightmares – and parliaments should be demanding evidence that early warning systems are in place.
4: Do we have the right work forces to reduce crime and support justice?
The question of whether the various professions and employees working in the world’s criminal justice systems is often neglected. But we are on the verge of facing some fundamental questions about the future of all professions, as an increasing proportion of work previously carried out by humans is automated and algorithmic decision-making becomes increasingly accurate.
The hype about automation can, of course, be over-blown but even without it our police, prison, and legal professions are changing rapidly. New specialisms are emerging all the time, and the idea of ‘omni-competence’ (a policing ideal forged in the era of self-policing citizens) is no longer tenable in any area. Domestic violence specialists, digital investigators, drug court judges and so forth are often better at what they do than the generalists they have replaced but specialization has created several fragmentary forces:
- First, there is a danger that some specialists end up too remote from the communities they serve, with all their complex and competing needs and priorities.
- Second, a more diverse workforce (in terms of backgrounds and skills) will not be attracted to current models of pay and progression, which reward tenure and broad-based skills.
- Third, traditional management models are rarely neither sufficiently fluid or powerful to meet the new challenge of matching specialist skills to incoming demands, and building cohesive interdisciplinary teams.
Justice professions need to lead workforce reform themselves, as history shows that professionally-led reforms are more likely to endure and succeed. Yet politicians do need to nudge and support action – as there will always be some who are strongly attached to current practices, either because they are seen to work well enough (‘better the devil you know’) or because of concerns about losing out financially. Developments already underway in UK policing led by the College of Policing are well worth watching: there will be mistakes but there is a clear acceptance that the profession must reform itself. Likewise, lessons can be learned from judiciary-led reforms, whether that is problem-solving courts or the judicial leadership of reforms that reduced court backlogs in Victoria, Australia.
5: What is the right approach to illegal markets?
2017 is the year that Canada legalises marijuana, a sign that the global tide is turning against blanket prohibitions on drugs. The success of Johann Hari’s book Chasing the Scream and Neil Wood’s book Good Cop: Bad War are a reflection of a broader shift that has seen prominent individuals like George Soros and Richard Branson start campaigning overtly to end prohibition – both because it has contributed to justice system bloat, and because it is seen to have done little to reduce the harm around drug use.
The end of the drugs war consensus is to be welcomed – but in truth countries need to work together to work out exactly what flavour of decriminalisation or legalisation will get the best results. The job of setting up the right regulatory framework for legal drugs is challenging and we must learn from each other regimes and interventions that will minimise harms around drug use while also tackling the perverse consequences that have accompanied the ‘war on drugs’.
The same issues frankly exist around a range of markets, both illegal, ‘grey’ and legal. Gambling, prostitution, and human trafficking are all areas where there is an urgent need to find new regulatory approaches that recognise that banning an activity does not stop it from happening. And tobacco and alcohol are interesting places to look for lessons on how to minimise (or fail to minimise!) harms around legal drugs. Legalisation will not always be the answer but wherever illegal or morally contentious markets exist, policymakers and police will need to broaden their toolkits to manage demand and reduce harms. This is an area where a new discipline needs to be created, supported by a mix of private and public money.
Finding the right answer to each of these questions will require a careful balancing of political and practical considerations. These are debates about ‘what works’ but also about values: do we value liberty over security, punishment over prevention, the interests of today’s taxpayers over those of their children? Yet despite the myriad differences across developed countries, these are questions that cannot be ducked if we are to make further progress on reducing crime and delivering effective, humane and sustainable justice systems.
This piece first appeared on Russell Webster’s website, a valuable resource for information on UK crime, justice and drugs policy and practice news. Do take a look and subscribe for his updates – he can also be found on twitter. Do get in touch with me via twitter or connect via this website if you need advice on these or related issues.