#17845 - Diversion, Discretion And Legitimacy - Criminology

Diversion, discretion and legitimacy

Bottoms and Tankebe (2017) Police Legitimacy and the Authority of the State

Legitimacy and Justification

• Bernard Williams:

  • First political question” for any society is how to secure order safety trust, or cooperation, before considering other issues such as health and education

  • To thus create this sense of stability, need certain people to have greater power than others – a “rule”

  • Power-holders need to develop narratives of legitimation, as to why they are the solution to societal problems

  • In contemporary societies, the judgement of legitimacy depends on context in the relevant time and place

Thus may advocate for a primarily empirical approach to legitimacy that will work on a bedrock of moral commitments

“Belief in Legitimacy” or “Justified by Moral Beliefs”

• Beetham: legitimacy must be understood “in given social contexts rather than independent of any particular context”

• He focuses research attention on the justifications offered by power-holders, and how these justifications are responded to by citizens

• He says there are three components of legitimacy that are universal in form, but which vary in their specific content in different societies:

  • The legality of the actions of power-holders

  • The justifiability of the actions of power-holders in terms of the shared values within that society

  • Expressions of consent by citizens (actions conferring legitimacy)

Policing and the enforcement of state authority

• Weber: defined the state as a ruling political organisation that, within a given territorial area, “successfully upholds the claim to the monopoly of the legitimate use of physical force in the enforcement of its order”

• Importance of policing in relation to issues of public order and public protection is both physical and symbolic

  • Physical: US Committee to Review Research on Police Policy and Practices: where the police applied a diverse array of approaches (not simply law enforcement) in a focused way, the research showed moderate to strong evidence of effectiveness in crime reduction

  • Symbolic: Innes points need to consider that police intervention depends upon and pivots around communication

    • Practices such as stop and search communicate powerful messages concerning whether the state truly values the citizenship and equality of those who live under its protection

“Policing by consent” and the basic legitimation demand

• Idea that the police can, in the last resort, only retain full authority and effectiveness with the consent of the general population

• Relates back to Williams’ idea that a state is only legitimate if the claimed authority of the power-holders has been justified

  • Legitimate state meets the “Basic Legitimation Demand” – a demand by subjects that the power-holder should provide adequate justification of their claim to rule

A legitimation for every citizen?

• Concept of legitimate policing can be rephrased as policing where there is congruence between the system and the practices of policing, on the one hand, and the societal beliefs, values and expectations that provide its justification, on the other.

• Williams’ concept of the basic legitimation demand then helps us to sharpen that formulation by insisting that the police must always be willing to offer justifications for their actions to each citizen with whom they interact

Williams and Weber

Look to longer notes

Responding justifiably to the basic legitimation demand

Authors suggest some content for justifiable police responses to the basic legitimation demands of those who are policed.

B and T suggest a fourfold conceptualisation of the potential components of criminal justice legitimacy, as viewed by those subject to state power: 1) procedural justice, 2) distributive justice, 3) effectiveness, and 4) lawfulness.

Procedural Justice

• This is the fairness of the process employed to reach specific outcomes or decisions; it includes both the quality of decision making and the quality of treatment of citizens.

• B and T say citizens often prioritise procedural justice (how they are treated) over the perceived favourability or fairness of the outcome of their encounter with the police.

• Why is it so important?

  • The Group Value Model (Lind and Tyler (1988)) suggests when police recognise individuals’ rights, it makes the individual feel valued. The converse applies when police treat individuals poorly – they are telling those groups that they have marginal status in society.

• https://onlinelibrary.wiley.com/doi/full/10.1111/j.1745-9125.2012.00289.x

Distributive Justice

• This involves distributions of things that fall to be divided among those who have a share in the constitution (Aristotle).

• However distributive injustice occurs when there is over or under enforcement of certain groups e.g. more police stops for black people, etc.

  • Groups who experience over or under enforcement tend to blame the police for what they have experienced, leading to a diminution of legitimacy.

Effectiveness

• Beetham noted that the police need to be reasonably successful in achieving results to be legitimate – vigilantism supports the claim that ineffectiveness leads to loss of legitimacy

  • e.g. in Nigeria lack of police response against violence robberies contributed to the rise of the Bakassi Boys, a vigilante group.

• Groups like vigilantes and mafia do provide protection like police, but are different because they do so in a manner that threatens safety of others and without notions of justice and accountability – so they are NOT legitimate.

Lawfulness

• Power should be acquired and exercised in accordance with established rules, both formally legal and in convention – those who enforce the law must do so while loyal to the law alone (free from bias and prejudice).

  • E.g. police often appeal to legal provisions as the basis for their actions like coercive powers.

• When police fail to do so, there is deep disquiet and loss of confidence in police.

• Police unlawfulness can be systematic like racial targeting, or more subtle like ‘noble cause corruption’ (planting evidence to convict an ‘obviously’ guilty person.

• Beetham says the people being governed need to have the same values as those administering the law – a conflict in these values can contribute to a view of illegitimacy.

Realism

B and T say that these four issues must always be seen as potentially interacting with each other, but this includes conflict with each other e.g. effectiveness can conflict with lawfulness or distributive justice (like where a type of crime appears to be committed frequently by a certain ethnic group).

Conclusion

B and T maintain that these four issues are practical guides to the delivery of legitimate policing – there is firm evidence that a failure to do any one of these four matters has on some occasions led to a legitimacy deficit for a public police service, and there are no reports of a police that has delivered all four of them and lost its legitimacy.

Discretion

• Discretion refers to the freedom, power, authority or decision of an official, organisation or individual to decide to make a judgment, choice or decision

What is a ‘diversion’?

• Diversion is discretion at the early gate-keeping stages, and mostly channels people out of the criminal justice system (CJS), whereas discretion can achieve both ‘in and out’ actions.

• SO diversions are ‘out-of-court’ disposals, used with less serious cases to deal with offenders without going through the whole CJS.

Distinguishing discretion from discrimination and disparity

• Discrimination involves showing judgment and can be good or bad, although in the CJS it is commonly tied to the idea of prejudice.

• Disparity is concerned more with differences in outcome rather than process and has relevance in terms of offenders and victims being treated differently when their circumstances are similar.

• While disparity deals with the consistency with which criteria are applied to cases, and discrimination commonly refers to the use of illegitimate criteria, both involve the use of discretion.

  • SO discretion can be used in a negative way, and has been thought of as occurring when there are unfettered powers of discrimination.

Socio-legal research on discretion

• Numerous variables have been identified that can influence discretion in the CJS e.g. process, environment, context, and illicit considerations (like sex, race, etc.)

• A key concern is against unnecessary, excessive discretionary power – articulated by Davis (1969), who also highlights ‘openness’ as being key to fair exercise of discretion.

• Bottomley (1973) suggests that discretion is required for justice, but we should also question the principles which are intended to inform the decision-making process

  • He lacks practical suggestions on how to do this, but favours society as a whole being the judge of what principles hold underlie the penal process.

Core concerns

• Discretion in pre-court decision-making –developments in police discretion re young offenders; the Crime and Disorder Act 1998; issues re net widening; who makes decisions, the limits of internal review, etc.

• Discretion in sentencing – judicial discretion in sentencing is of recent origin according to Thomas; as discretion grew, so did the need to control it.

• Discretion in prison work – Liebling and Price say that prison officers cannot enforce all the rules if they want to finish the day without difficulty.

• Discretion in releasing life sentence prisoners – Padfield and Liebling looked at the relationship between the decisions taken by the key players in the system...