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ESC Conference Prague 2014 ESC Conference Prague 2014 Legitimacy, Mitigation and Guilt: What do Pre-Sentence Investigations Achieve ? Cyrus Tata Strathclyde.

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Presentation on theme: "ESC Conference Prague 2014 ESC Conference Prague 2014 Legitimacy, Mitigation and Guilt: What do Pre-Sentence Investigations Achieve ? Cyrus Tata Strathclyde."— Presentation transcript:

1 ESC Conference Prague 2014 ESC Conference Prague 2014 Legitimacy, Mitigation and Guilt: What do Pre-Sentence Investigations Achieve ? Cyrus Tata Strathclyde Law School, Scotland

2 Official Purposes Relevant personal & social circs info for the court to assist sentencing Relevant personal & social circs info for the court to assist sentencing Quality, ideological shifts, influence Quality, ideological shifts, influence Perpetual anxiety about actual impact – mere empty symbolism? Perpetual anxiety about actual impact – mere empty symbolism?

3 What else do PSIs do? Accelerate case ‘disposal’ through expressive moral performance

4 PSIs Manage the Felt Gap Problem Justice In the Books vs Action Justice In the Books vs Action But How do professionals cope? But How do professionals cope?

5 Sense of Guilt / Discomfort Starting point: we like to see ourselves in positive light and through how we believe others perceive us Starting point: we like to see ourselves in positive light and through how we believe others perceive us Justification is inherent in inter-personal encounters (Levinas) Justification is inherent in inter-personal encounters (Levinas) Finding ways of justifying changes in profl action once deemed wrong (eg Tata 2007 legal aid) Finding ways of justifying changes in profl action once deemed wrong (eg Tata 2007 legal aid) Awkward Awareness of gap Awkward Awareness of gap

6 Sense of Professional Guilt Justice Prof’l Soc selfLevinas

7 “On a practical level sometimes you don’t have as much time when you’re doing summary criminal legal aid work as you perhaps should have with individuals” [def lawyer intv 10, psr study] “On a practical level sometimes you don’t have as much time when you’re doing summary criminal legal aid work as you perhaps should have with individuals” [def lawyer intv 10, psr study] ‘It’s just a Factory’ ‘It’s just a Factory’ ‘Not what it was’ ‘Not what it was’ Could and should be better but resources Could and should be better but resources Explanations to novices (eg also socialisation) Explanations to novices (eg also socialisation)

8 Displaying Fair Justice Summary process notoriously abrupt – legit gap Summary process notoriously abrupt – legit gap Reliance on admission of guilt (plea/confession) being seen as a free decision Reliance on admission of guilt (plea/confession) being seen as a free decision ‘Dirty work’ (Hughes 1951/58/62; Ashforth & kreiner ) ‘Dirty work’ (Hughes 1951/58/62; Ashforth & kreiner )  “Visceral repugnance”  But soc constructed standards of cleanliness and purity (Douglas 1966)   Seen as both necessary and potentially polluting

9 Physically Dirty

10

11 Social Dirty Work?

12 Moral Dirty Work

13 PSIs Display Process Fairness Present a display of humanity, dignity & unique individualisation Present a display of humanity, dignity & unique individualisation  Participation - a ‘voice’ where otherwise none  Complaints/ ridicule also celebrate apparent individualisation  ‘Context’: performs legal justice’s nod to distributive justice  Closure through the display of openness

14 Morally Dirty work of PSIs What makes it ‘dirty’? What makes it ‘dirty’?  Challenges RoL justice images (eg freely admit) Protective function Protective function Cleansing Cleansing Delegated Delegated Morally dirty work is kept back-stage Morally dirty work is kept back-stage Enables Justice Professionals to see themselves perform as they would prefer Enables Justice Professionals to see themselves perform as they would prefer

15 Moral Cleansing Work Prepares Cases for Closure Disruptive / Resistant Straight denial (factual) Threat of worse (trial tax, remand ) Unsure/confused Fatalism / Arbitrariness Conscious non-engagement Exculpation / moral challenge Open Facilitating / Compliant Admission Tactical / game playing In denial - Work to be done Accepts it’s Inevitable Responsibilised Transformation or implicit condemnation Closure

16 Conclusions  Inform, advise, but also  Generally (but not always) manage the felt gap problem enabling sense of moral closure  Largely legitimating but also reopen moral problems

17 Further Questions 1. Therapeutic/Cathartic but for whom? 2. Are mass ‘free’ admissions universal? 3. Judicial Sense of PF by diff means? 4. Does Low sense of PF lead to legit strain? 5. Do PSIs make it more or less likely to ‘Punish in Bad Conscience’ ?


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