Accueil » Editorial » GLM v. RNR again… psychologists or PO… & human rights issues in probation

GLM v. RNR again… psychologists or PO… & human rights issues in probation

In their recent Where has all the psychology gone (Aggression and Violent Behavior 2014, n° 19: 435-446), Gannon and Ward attack RNR yet again. We’ve all seen previous publications opposing them – and others – to RNR proponents and theorists.

RNR is notably accused of infringing on and not caring about human beings and human rights; of being the vector of punitive policies; whilst other methods are accused by RNR of being non-evidence-based or insufficiently evidence-based.

Seen from Europe, where advanced jurisdictions such as, inter alia, England and Wales, Scotland (with variations), and the Netherlands, have a much more pragmatic and mostly non-polemical approach, and tend to take this (RNR) and that (CCP, GLM, you name is so long as it seems to work and is at least worth experimenting), this is rather sad.

Both camps have strong arguments. However, it also seems that they actually have a lot in common but tend to deny it.

At the core of this we know that there is a different antediluvian war between the pro-psychology (not Olde School Freudian-Lacanian ‘let’s shout under bridges and dissect your dreams’ rubbish psychology mind you; the precision being essential in France) and the pro-sociology camps. We also know that there are indeed different ways of seeing offenders and of including their agency, their human – and as a lawyer I hasten to add their legal and I’ll get back to this – rights, and of including the hugely important “Who Works » factor.

This time, beyond repeating the classic ‘RNR is punitive’ argument – which frankly annoys me: it confuses RNR theory with their translation into a certain type of programme notably devoid of human service, against the backdrop of indeed punitive policies – they insist on who should work in “correctional” settings – in Europe we prefer to refer to prison and/or probation, probably because of the dreadful connotation of ‘correctional’.

What they are saying is that we need people with certain skills, people with certain qualifications and people with experience. They clearly think that the people we need are experienced and skilled psychologists. They regret that in many cases ‘paraprofessionals’ do the work. They do not point their finger at probation officers, but we all know they are, in many cases, these paraprofessionals. Even if Andrews and Bonta (2010) do not state that only psychologists should do the work, they similarly repeatedly refer to clinical principles, and insist at the beginning of their Manual that their vision and method is a psychological one, not a criminological one (which they seem to equate to a sociological approach, at least in mainstream criminology).

At the same time, Gannon and Ward deplore that working under RNR conditions in corrections has damaged psychological practice and habitus and threatens hugely important human factors, namely therapeutic skills and alliance.

So even though their article pertains to something else, what I draw from it is a question: whether psychologists should do the job, or perhaps whether probation officers should be psychologists? I confess I am both confused and interested in this, particularly at a point in time where France is at long last realising that lawyers are definitely not the best people in terms of the skills that both Andrews & Bonta and Gannon & Ward are talking about.

As of rights, this seems to be the usual caveat. With Andrews and Bonta, in a usual footnote-like afterthought that of course all what follows needs to follow ethical principles – which are never listed or investigated, although to be fair they do repeatedly refer to research showing that nasty punitive practitioners and programmes don’t work; with GLM proponents and others, in a usual criticism of the other camp, for ‘sitting on’ , as we would put it in French– ignoring completely – human rights, without ever specifying what these human rights exactly are.

To be fair, Gannon and Ward did publish a Moral Rights and Practice in the Human Services, Jessica Kingsley Publishers, 2008. However, for the lawyer that I am, this is not precise enough, not clear enough, not legally utilisable enough. We would need greater precision that would refer to general legal theory (e.g. values, morals, goals, principles, deontological principles, substantive and subjective rights, substantive versus procedural rights – all these need being differentiated as they have vastly different legal consequences and effects). Moreover, Gannon and Ward (2008) loosely refer to UN rules. In Europe, we have different legal traditions and have to operate within two distinct European legal systems: the Council of Europe and the European Union.  Within the European continent, How things are done, how they should be done and by whom, are questions which receive vastly different answers (see notably Durnescu and Van Kalmthout, 2008 and Padfield et al., 2010)

It is however interesting to see that the EUROPEAN PROBATION RULES focus mostly on EVB practices and very little on actual concrete offenders’ rights in probation. Nothing on the presumption of innocence in breach cases, for instance, nothing on fact-finding decision making (as in De Mesmeaker’s updated version of the legitimacy of justice literature) or in risk assessment, nothing on the right to counsel or appeal, etc.

There is nothing either in the undisputable excellent initiative of the Probation Institute, to develop a PROBATION CODE OF ETHICS

The issue of procedural rights, in particular, is crucial and has not been addressed in the criminology-psychology-sociology literature. And aside from legal literature, neither Andrews and Bonta and other RNR theorists, nor GLM Gannon and Ward or others refer to empirical quantitative (e.g. Tyler’s numerous publications) and qualitative (Vicky De Mesmaecker, 2014) legitimacy of justice (LJ) literature, even though it has patent links with what leads to therapeutic alliance, and respect for agency – not to mention obvious links with legal procedural theory (of fair trial/due process/equitable trial).

Beyond general theories, there are acute and practical human rights-procedural issues that all this literature, including legal theory, should work together on, in order to better address issues such as, inter alia:

-          Shouldn’t probationers have a right to a counter-risk assessment given the legal and other consequences that routine risk assessment has on them? (a classic legal principle);

-          Shouldn’t risk assessors be obliged to provide the proof and/or reasoning leading to their scoring – so as to be held accountable as to its accuracy, lack of bias, and… be challengeable in court and/or via a counter-risk assessment? (‘proof’ being both a legal and a LJ principle- see de Mesmeacker, 2014);

-          Shouldn’t all important decisions (release, breach or other sanctions, adding obligations and prohibitions…) made in the course of the execution of a sentence, be decided in a context where basic due process rights are observed, such as the right to be present, the right to defend oneself and to be assisted by an attorney, the right to ask questions and participate in the proceeding, the right to have access to the documents supporting the decision, and so on? (refers to ‘voice’ in LJ and due process in legal terms);

-          And shouldn’t all these decisions be challengeable (Appeal principle – and there is a link to ‘neutrality’ in LJ);

-          Shouldn’t we ensure that those who supervise are not those who make decisions? (‘neutrality’ in LJ; impartiality in legal terms, and separation of incompatible functions in French procedure law);

-          Are mandatory forms of probation (for instance with automatic early release or ‘safety measures’ imposed after the sentence has been fully served) acceptable?

 

I would have a much longer list of questions, but suffice to say that there is much to say on this subject and that rather than a war between two camps for which I personally have the utmost – and equal – respect for, I would love for us to now to roll up our sleeves and see where exactly human rights fit in probation/supervision /correction matters, and what we should exactly fight for in practical and legal terms.

 

An, addendum to my post. In their PCC, 2010 (p. 516) , Andrews and Bonta wrote: ‘We think antisocial behavior  is too serious an issue to be left in the hands of justice and correctional agencies. Mainstream health and social service agencies and agents may consider contributing by offering programs that build rewarding alternatives to crime for moderate- and higher-risk cases.’

I other words they – once again – do reach the same conclusion as Ward and Gannnon.