Criminal justice reform through emotionally intelligent justice

Guest blogger Dr David Patton …

The Criminal Justice Systems (CJS) in many countries are dominated by negative responses to crime and criminality that are focused on retributive punishment and exclusion.

Policies, ideologies and acts of retribution, exclusion, excessive punishments, excessive powers being given to criminal justice agents, a disregard for human rights etc. are counter-productive in creating justice and helping to reduce recidivism.

Continuing to apply the dominant models of criminal justice, namely the models of Crime Control, Status Passage and Power (King, 1981) that promote further violence and exclusion, will not and cannot succeed in attaining the results that are much needed today.

Peacemaking Criminology observes that violence is inherent within the criminal justice system (CJS) its models of criminal justice and the practices of its staff (Pepinsky, & Quinney, 1991). It is believed that patriarchy plays a key role in creating violence within the CJS (Pepinsky, 2006). When the criminal justice models are administered in an adversarial system as we have in the UK, which is premised on conflict and opposition and the emphasis of the trial is on the suspected persons guilt, and if convicted their punishment, and latterly their remorse, this only serves to entrench the patterns of negativity and violence.

The observation that “An eye for an eye only ends up making the whole world blind” (Ghandi, 1942) highlights the fact that a negative act, responded to in a negative way can only produce a further negative result.

What is needed is an input/response of a different kind, as Martin Luther King noted “Hate cannot drive out hate; only love can do that” (King, 1967).

If we want to see a different result in relation to justice, then a different input/approach/response is needed from the State, the CJS, and society in relation to terrorism.

In addition, if we want to see a different result, one that is positive, then it is advocated here that the input/approach/response 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.

What is needed is a new paradigm to allow for the emergence of a new emotionally intelligent criminal justice system (CJS) with new models and forms of emotionally intelligent justice to accompany it, to end the cycle of further acts of ‘violence’, which are also inherent within the CJS (Pepinsky, 2006).

Such an emotionally intelligent approach is needed which ends the patterns of separation, exclusion, excessive punishment, shaming and humiliation.

The term “emotional intelligence” seems first to have appeared in 1964 (Beldoch, 1964) but was popularised by Goleman (1996). Mayer & Salovey, (1997: 10) define emotional intelligence as a set of interrelated skills:

“the ability to perceive accurately, appraise, and express emotion; the ability to access and/or generate feelings when they facilitate thought; the ability to understand emotion and emotional knowledge; and the ability to regulate emotions to promote emotional and intellectual growth.”

Therefore emotional intelligence provides an understanding and management of emotional data to help inform resultant judgments and decisions that promote positive growth.

Sherman (2003:26) argues that an emotionally intelligent justice system would be comprised of:

1. the systems emotions in the form of CJS staff being aware of and being able to manage their emotions more effectively;
2. recognising the emotional states of victims, offenders and others involved in the system;
3. being aware of the effects of decisions and the administration of ‘justice’ on those involved in the system.

It is advocated that Positive Criminology holds the greatest potential at present to help provide some of the much needed answers as to ‘what’ and ‘how’ this new paradigm of emotionally intelligent CJS and forms of justice may look moving forward.

“Positive Criminology (not to be confused with Positivist Criminology) is a new conceptual criminological perspective that scientifically targets crime, violence and “bad” experiences at the individual and social levels with goodness and with positively experienced encounters. Positive Criminology places an emphasis on social inclusion and on unifying and integrating forces at individual, group, social and spiritual levels that are associated with the limiting of crime.” (Positive Criminology, 2016)

This new and emotionally intelligent approach needs to draw upon a non-violent approach, and integrate all parties into society, offering the possibility for a transmutive, transformative and positive experience and to administer effective justice for all.

New theories, paradigms and approaches in criminology need to be created and developed further, and existing ones brought to the fore of the discipline to support the creation of such emotionally intelligent justice.

“The new paradigm criminology could build is one in which a justice system becomes emotionally intelligent in all of its interactions with suspected, accused, and convicted offenders, as well as with victims, their families and communities…criminology can also invent ways to foster such intelligence at the level of social systems.” (Sherman, 2003: 25-26)

Sherman (2003) highlighted two major tasks in making justice more emotionally intelligent, the first was to increase the capacity for the justice system to process cases with an awareness of all actors involved in the case so as not to increase the likelihood of recidivism.

Therapeutic jurisprudence (TJ) would seem to be most appropriate here:

“Therapeutic jurisprudence (“TJ”) has sought to look at the law in a richer way by pondering the therapeutic and anti-therapeutic impact of “legal landscapes” (legal rules and legal procedures) and of the “practices and techniques” (legal roles) of actors such as lawyers, judges, and other professionals operating in a legal context.” (Wexler, 2013: 463)

TJ has significant potential in reforming certain parts of the CJS. For example, if lawyers and judges were sensitive to and aware of the therapeutic or anti-therapeutic consequences that their words, actions and decisions can foster with those they are interacting with, and were adequately trained in how to do this effectively (Wexler, 2012), this alone would have a major impact within the CJS in terms of enabling it to become more emotionally intelligent.

The second major task Sherman (2003) highlighted was to begin creating ‘bolder experiments’ that produce a broader range of tools which help people to remain law-abiding citizens but which are non-threatening to them. This will require new justice inventions, processes and practices that are diverse in nature and which are evaluated. It is advocated here that Positive Criminology has great potential to create new experiments and a range of tools to support citizens, as it posits an alternative to the traditional focus on imprisonment, exclusion and shaming by utilising integrative, inclusive and positive forces and mechanisms.

Flynn, (2013) adds a third major task, the need to include the involvement of the wider public in the creation of emotionally intelligent justice given their role in shaping criminal justice policy via political/election voting power (Loader, 2006; Ryan, 2003). Positive criminologists would support this, especially in relation to social integration, where they place a call for society to ‘positively and intelligently use its power, institutions, and means toward this end’ (Ronel & Segev; 2014:1394). There would clearly need to be a shift away from the popular forms of retribution that dominate political and public opinion to allow for the possibility of new forms of emotionally intelligent justice to emerge.

In order to create an emotionally intelligent CJS with new forms of emotionally intelligent justice to accompany it, we would need to create a new system that is:

• non-violent in its approach and is focused on inclusion and integration;
• that utilises positive encounters and forces in offering a transformative not punitive experience; and
• one that is resolute in raising the emotional intelligence and awareness of its staff of the therapeutic or anti-therapeutic effect of their words, actions, decisions and working practices/systems.

The role of empathy should not be ignored here. One that includes and is informed by all of the voices of those affected by crime and criminality.

Further, a new paradigm for an emotionally intelligent CJS system and model of emotionally intelligent justice is needed that has a congruence between their aims, means, theories, spirit/values and the principles upon which they are based and the positive outcomes that they aspire to produce.

We must ensure that new forms of justice are not excessively focused on ‘order’ as opposed to justice, as this is likely to perpetuate the current system of control and power over equality and transformation.
Conclusion

The need for and benefits of a new paradigm for an emotionally intelligent CJS, one that utilises theories and models of criminal justice that are also emotionally intelligent is clear.

The existing criminal justice system, and moreover many of the negative principles and values on which they are based are likely only to exacerbate the situation further and continue a negative pattern of further ‘violence’.

The magnitude of the task of creating a new paradigm for an emotionally intelligent CJS or new models of emotionally intelligent justice in the UK is not underestimated.

However, the task cannot be ignored given some of the current outputs and harms created by the CJS in the UK as well as some of the dynamics present in contemporary life in the West.

The scale of the task ahead should not deter those who are committed to such an endeavour, as each step made along the way has the potential to reduce the levels of ‘violence’ and harms occurring in the CJS and beyond.

We are presented with a great opportunity and only time will tell if we embrace this opportunity of creating a more emotionally intelligent understanding of justice for the benefit of all.

Dr David Patton, Department Lead for Learning, Teaching & Quality (Law, Criminology & Social Sciences), College of Law, Humanities & Social Sciences, University Derby

This blog post is extracted from a published article ‘The Need for New Emotionally Intelligent Criminal Justice & Criminological Approaches to Help End the ‘War on Terror’’ . SSRN Link here.

References

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Pepinsky, H. E., & Quinney, R. (Eds.). (1991). Criminology as peacemaking. Bloomington: Indiana University Press.

Positive Criminology (2016) ‘Positive Criminology’ [online] http://positive-criminology.biu.ac.il/index.html retrieved on 1/7/16

Ryan M (2003) Populists and publics. In: Ryan M (ed.) Penal Policy and Political Culture in England and Wales: Four Essays on Policy and Process. Winchester: Waterside Press.

Sherman LW (2003) Reason for emotion: Reinventing justice with theories, innovations, and research—the American Society of Criminology 2002 Presidential Address. Criminology 41(1):

Wexler, D. B. (2012). New wine in new bottles: The need to sketch a therapeutic jurisprudence “code” of proposed criminal processes and practices (Arizona Legal Studies, Discussion Paper No. 12-16). [online] Retrieved from http://ssrn.com/abstract=2065454 retrieved on 21/7/16