Community Penalties and the Dynamics of Compliance

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Community Penalties and the Dynamics of Compliance

• Gwen Robinson Fergus McNeill
• 11 April 2007

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Outline

• The context community penalties
• Defining compliance
• Explaining compliance
• Constructing compliance
• The legal and policy framework
• Responding to non-compliance
• Research questions

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The contextCommunity penalties
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Defining Compliance

• Bottoms (2001) distinguishes
• short-term requirement compliance
• e.g. an offender given community service
  attends regularly at community service work
  sessions, and works hard and diligently during
  those sessions
• longer-term legal compliance
• i.e. compliance with the criminal law not
  reoffending

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A Typology of Compliance
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Problematising Compliance

• Attitudes to compliance and compliance behaviours
  
• McBarnet (2003)
• Committed compliance
• Capitulative compliance
• Non-compliance
• Creative compliance
• the aim must be compliance with the spirit of
  the law, rather than creative compliance with its
  letter (p241)

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Five Motivational Postures(Braithwaite, 2003)
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Explaining Compliance

• Bottoms (2001)
• Instrumental compliance
• Habitual compliance
• Constraint-based compliance
• Normative compliance (and relational legitimacy)
• Mixed mechanisms
• The dynamics of compliance compliance as a
  process

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A Dynamic Model of Compliance
Legitimacy deficits
Legitimacy
Formal
Substantive
Longer-term (Desistance?)
Instrumental? Habitual? Normative
Instrumental Habitual Normative
Instrumental Habitual Constrained
External controls
Internal controls
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Constructing Compliance The legal and policy
framework

• Clear emphasis on formal compliance
• National Standards governing supervision (Home
  Office 2005)
• Specify frequency of contact, e.g. the OM will
  arrange a minimum of one contact per week for
  sixteen weeks (SS8.2)
• Define non-compliance as any failure to attend
  an appointment or any other failure to comply
  (SS9.1)
• Compliance Key Performance Indicator
• (i) of arranged appointments attended in first
  26 wks (target 85)
• (ii) of cases reaching 6 months without
  requiring breach action (target 70)

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Problems

• Short-sighted view of compliance
• Motivated offenders who struggle to keep
  appointments
• Turning up and signing in
• Invites subversion merely formal and/or
  creative compliance (McBarnet 2003)
• ? Damages legitimacy of community sentences

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Approaches to Enforcement
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Some Consequences

• Doubling of breach rates from 18 - 37
  (1994-2004)
• No such increase in Scotland
• No impact on reconviction (longer-term
  compliance) (May Wadwell 2001)
• Meeting the target and missing the point?

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Explanations

• Offenders relatively immune to deterrent
  strategies (Hedderman Hough 2000)
• Less space to work on non-instrumental
  motivations (e.g. Hedderman 2003)
• Problem of secondary non-compliance (e.g.
  Murphy 2005 Sherman 1993 Sherman et al. 2003)
• Problem of multiple audiences of enforcement?

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Implications

• Compliance could be enhanced by a more responsive
  enforcement strategy (Ayres Braithwaite 1992)
• Examples from practice (e.g. Ellis et al 1996
  Hearnden Millie 2003)
• Carrots as well as sticks

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Research Questions

• How are compliance and non-compliance constructed
  in the two jurisdictions policies and what are
  the implications for official compliance rates?
  What are the implications at the level of
  practice?
• To what extent do policies and practices emphasis
  formal and/or substantive and/or longer term
  compliance?
• Do offenders exhibit motivational postures
  similar to other subjects of regulation in other
  contexts? What accounts for these postures? Do
  these postures predict formal and/or substantive
  compliance behaviour? How and why do they change
  over time?

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Research Questions

• Do supervisors recognise and respond to these
  postures? If so, how? How do practitioners
  understand and seek to encourage and regulate
  compliance (formal, substantive, longer-term)? To
  what extent is there evidence of responsive
  regulation?
• How do offenders perceive and respond to
  different regulatory practices, policies,
  strategies and decisions?
• How could compliance be improved in practice
  specifically which regulatory practices might
  best support formal, substantive and longer-term
  compliance?