McAra, Lesley. "Modelling penal transformation". Punishment and Society, Vol.7, No.3 (2005): 277-302.

McAra, Lesley. "Modelling penal transformation". Punishment and Society, Vol.7, No.3 (2005): 277-302.

• Many scholars argue that the penal 'system' does not fulfill the requirements for a 'true' system, lacking both common core values and any rational sense of coordination between its component parts. Some scholars have argued that 'process' is a better description of the phenomenon (279).
• This line of argument has been notably absent in research on penal transformation and reform, as this scholarship generally considers prisons to function in a system whereby parts communicate and change in one area can affect the entire system (279).
• Source mine of theoretical literature on the nature, development, and functioning of social systems on page 279.
• A system requires a boundary to delimit the system from the outside; and shared internal linkages, especially in terms of language or methods of communication; and must be able to self-reproduce and replicate its functions (279-281).
• The point of penal transformation is commonly cited as the 'prison crisis' of the 1970s and 1980s in Western countries. It began in the 1970s when public faith in rehabilitation collapsed following research discrediting many programs, a situation exacerbated by the low quality of prison programs affected by overcrowding and low morale (281-282).
• Externally, prison change was also brought on by the emergence of a 'risk society', in which political discourse primarily revolves around security risks and community dynamics are affected by these concerns. The rise of fear as a nexus for political mobilization spurred prison reform (282).
• Others argue that societal factors drove the prison crisis. Late modern societies feature high crime rates, deep social divisions, and many opportunities for crime, underpinned by retreat of state sovereignty under advanced liberalism. In particular, the forces of neoliberalism and globalization have created 'structurally redundant populations' without a place in late modern society, forcing them into criminal acts to which the penal system responds (283).
• The criminological community in general agrees that discourse about prisons has experienced a major shift, although there are disputes about the nature of that change. Some argue that the dialogue has become more focused on individual action and just deserts, with convicts expected to bear responsibility for their decisions. Others argue that penal discourse is split between conceptualization of prisoners as rational individuals and that of prisoners as irrational 'others'. Another group holds that actuarial justice has become dominant, with human individuality being ignored (283).
• Changes in penal discourse has been reflected in change of prison practices. Abandoning techniques of rehabilitation, the criminal justice system has returned to crime prevention, focusing on risk prevention and incapacitation of offenders. Penal bureaucracies have also become increasingly managerial, with focus placed on generating statistical evidence of measured success (283).
• The boundaries of the prison system are relatively open and respond to broader societal changes. The changes wrought by globalization and neoliberalism have affected the range of prison functions, and have caused it to adopt techniques of actuarial justice that have altered its function from a mechanism of social change to a tool to manage unresolved societal tensions (284).
• The prison system does appear to have internal linkages reflected in common use of language, however the terms and concepts employed are often contradictory even within singular elements of the system, reflecting the multiplicity of competing concepts used in contemporary prisons (284).
• The demonstrated ability of penal systems to respond to external and environmental pressures mean that a transformation of the penal system is only likely to result internally from an extra dysfunction between prison function and the demands of the community, otherwise the prison is likely to change from external pressure (284-285).
• Despite experiencing many of the same trends in a crisis of government and pressures of risk society in the 1970s and 1980s, the Scottish prison system is characterized by continuities in prison practices rather than change. Although the Scottish penal system has changed, this was in the late 1990s and in response to different factors, like increased focuses on human rights in the penal process (285).
• The author argues that the agency of the Scottish government and elite policy-makers was critical to shielding the Scottish penal system from the broader changes in discourse in other jurisdictions. These have made the systemic boundaries of Scottish prisons much stronger than elsewhere (285).
• The system that did emerge in Scotland, and has largely remained is characterized by a welfare approach to penal systems, focusing on criminality as a result of larger social issues, giving expert opinion a large role in the process, and making consensus of parties important in the process (285, 287).
• The 1707 Act of Union between Scotland and England guaranteed separate Scottish church structures, and different educational and legal systems. Scottish criminal policy has controlled by a separate office until disjunction in voting patterns, especially under the mainly English conservative government of Margaret Thatcher, prompted the New Labour government to create a Scottish Parliament in 1998, with control over prison policy (285-286).
• There has been a large degree of continuity in prison policy before and after devolution. This is largely because, although the executive has changed, the same officials still staff the bureaucracy and police service (286).
• The principle of social welfare in juvenile justice in Scotland was first enshrined in the Youth Justice Scotland Act of 1968, which replaced previous juvenile courts with the 'children's hearing' system. These changes were based on recommendations of the Kilbrandon Committee, which put forward that juvenile criminality should be considered a manifestation of larger social or economic dysfunction resulting in improper child rearing (286-287).
• The Scottish system remained largely unchanged during the 1970s and 1980s, a period of dramatic state retreat in other areas of the West. Real change first began to manifest in the 1990s during the Okney and Fife inquiries on the protection of vulnerable children and concerns about the system's ineffectiveness towards repeat juvenile offenders (287).
• These new concerns about protection of the public interest were reflected in the Children Scotland Act of 1995, which allowed children's courts to place the public interest above that of the child for the first time (287).
• This was followed by a number of initiatives attempting to minimize the harm of youth offenders to their communities through targeted interventions (287).
• The author contends that these changes towards crime prevention in the 1990s constitute a fundamental change in the Scottish system, because they only apply to a very small number of high-risk juvenile offenders. Furthermore, the regime of targeted interventions still facilitates Kilbrandon's principles of targeting broader social forces by maintaining a holistic view of the causes of crime (287-288).
• The incorporation of the European Convention of Human Rights into Scots Law in 1998 raised concerns about the acceptibility of some Scottish practices, like arbitrary intervention or lack of certain legal frameworks in children's hearings. Legal challenges to the system under these grounds, however, have been dismissed through arguments that the social welfare focus of the system still protects fundamental rights (288).
• The case of the juvenile justice system would suggest that the Scottish penal system has been extremely successful in absorbing and reconstructing challenges within its central social welfare model developed by Kilbrandon. The continued support of key elites in policy-making and the judiciary for this system has been critical for its ability to maintain a core ethos despite critique (288).
• The contemporary role of social work in the penal process was established in the Social Work Scotland Act of 1968, when the probation service and its officers were transferred from policy control to localized social work departments. Like other programs in Scotland, it was constructed to promote social welfare and a holistic response to crime (288-289).
• Social work in Scotland was relatively unaffected by changes elsewhere until the late 1980s, due to increased scrutiny about its effectiveness in light of deindustrialization and unrest in prisons (289).
• The Scottish government responded to these issues by passing the Law Reform Miscellaneous Provisions Scotland Act of 1990, which replaced local funding with a central financing scheme for social work and implemented national objectives and standards. This created a new managerial regime focusing on targeted deployment of resources and risk management (289).
• The social welfare model of the Scottish prison system, however, shaped the implementation of all of these measures, as social work has actually been expanded in use since the introduction of more statistically grounded crime prevention strategies, especially by expanding community punishments for serious offenders, who are least likely to benefit from imprisonment. These changes have actually encouraged a move away from imprisonment (289).
• During the 1990s, more actuarial methods of crime prevention did develop in Scotland, but like with juvenile crime, these measures have specifically targeted a small group of high-risk offenders guilty of serious violent or sexual offenses. While this group has experienced more controlling strategies without a rehabilitative focus, the general prison population was not been affected (290).
• From the 1950s through the 1970s, Scottish prison policy was focused on rehabilitation and the best outcomes for inmates. In the 1980s, however, an crisis of overcrowding and poor quality of services in prison led to the same issues as elsewhere. The reform of prisons during this period placed an increased focus on personal responsibility, with programs being offered, but participation in rehabilitation now being dependent on prisoner initiative (290).
• The same program still maintain a number of initiatives for prisoners to enhance personal ability to prevent repeating crimes, particularly in teaching good reasoning and techniques to prevent abuse of substances or recidivism of sexual offenses (291).
• The social welfare ideology remained in the new prison systems, although to a lesser degree, in the continued focus on family and societal connections as part of the rehabilitative process, signaled through increased home visits, better access to pay-phone, and programs to improve home life (291).
• Scotland experienced the same crisis of government in the 1980s and early 1990s as the rest of the Western world, but localized political factor change the response to this. Rather than changing penal policy, the crisis combined with discontent with the Thatcher government to create a constitutional crises which put forward devolution as the solution (292).
• Scotland has experienced the same changed in macro-economic structure as other parts of the West, as it has experienced a massive deindustrialization and simultaneous decline in the need for unskilled workers due to globalization. This process has also increased the wealth gap between high and low income families, including an increase in poverty. Society, especially low income communities, are affected by increased alienation and atomization (293-294).
• The association of the social and economic crises with the Conservative government may have actually served to prevent neoliberal penal policies in the rest of the UK from affecting Scotland because preservation of 'Scottish' institutions was now seen as a social good (292).
• The distinctive and separate nature of the Scottish legal and governmental systems created a general impression among Scottish bureaucrats that their mission was the adaptation of British law to the Scottish context, making them more aware and protective of Scotland's unique legal culture. This culture was also been easy to maintain largely because the Scottish legal system is so small and most elite actors know one another and have direct lines of communication (293).
• The civic culture of Scotland, arising out of the traditions of the Scottish church, its open education system, and a history of labor militancy, is based on a strong sense of community and public welfare. These values have become closely tied to Scottish identity, meaning that even when socio-economic trends erode it, its political value allows it to remain functional among elite policy-making groups (294).