Blamestorming, Blamemongers and Scapegoats
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Blamestorming, blamemongers and scapegoats Allocating blame in the criminal justice process Gavin Dingwall and Tim Hillier BLAMESTORMING, BLAMEMONGERS AND SCAPEGOATS Allocating blame in the criminal justice process Gavin Dingwall and Tim Hillier First published in Great Britain in 2015 by Policy Press North America office: University of Bristol Policy Press 1-9 Old Park Hill c/o The University of Chicago Press Bristol 1427 East 60th Street BS2 8BB Chicago, IL 60637, USA UK t: +1 773 702 7700 t: +44 (0)117 954 5940 f: +1 773 702 9756 [email protected] [email protected] www.policypress.co.uk www.press.uchicago.edu © Policy Press 2015 British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record for this book has been requested ISBN 978 1 44730 500 2 hardcover The right of Gavin Dingwall and Tim Hillier to be identified as authors of this work has been asserted by them in accordance with the Copyright, Designs and Patents Act 1988. All rights reserved: no part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without the prior permission of Policy Press. The statements and opinions contained within this publication are solely those of the authors and not of the University of Bristol or Policy Press. The University of Bristol and Policy Press disclaim responsibility for any injury to persons or property resulting from any material published in this publication. Policy Press works to counter discrimination on grounds of gender, race, disability, age and sexuality. Cover design by Qube Design Associates, Bristol Front cover image: www.istock.com Printed and bound in Great Britain by CPI Group (UK) Ltd, Croydon, CR0 4YY Policy Press uses environmentally responsible print partners Contents About the authors iv Preface v one Introduction and the centrality of blame 1 two Blame in the criminal justice process 27 three Blame and the blameless 53 four Blameless crime 77 five Blame amplification 101 six Putting oneself in harm’s way 115 seven Blame, punitiveness and criminalisation 135 eight Blamestorming and blamemongers 153 Glossary 171 References 179 Case list 191 Index 195 iii Blamestorming, blamemongers and scapegoats About the authors Gavin Dingwall was born and brought up in Edinburgh. He studied law at Warwick and Aberystwyth Universities and lectured at Aberystwyth before moving to De Montfort University in 2005. He is the author of Alcohol and crime (Willan, 2006) and (with Chris Harding) of Diversion in the criminal process (Sweet and Maxwell, 1998). Gavin claims to be an accomplished guitar player. He has also had the misfortune to be witness to some of the worst moments in the history of Hibernian F.C. (and there have been more than a few). Tim Hillier was born and brought up in Yorkshire. He studied law at the School of Oriental and African Studies and University of Sheffield. During the 1980s he worked for three years as a researcher for a human rights organisation in the West Bank. He moved to Leicester in 1988 and in 2011 became Associate Head of Leicester De Montfort Law School. He has published in the area of international law. Tim has endured the fluctuating fortunes of Leeds United but has been heartened by the recent return to cricketing success of Yorkshire. Five years ago he foolishly took up horseriding. iv Preface Blame as a concept informing domestic and international criminal justice has fascinated us for some time. Through our work researching and teaching criminology and penology and our individual interests in criminal law jurisprudence (GD) and international criminal justice (TH) it became evident that a systematic account of the role blame plays in the criminal justice process would constitute an important contribution to contemporary debates surrounding the use of the criminal law and, by implication, of punishment. It is accepted that recourse to the criminal law has become increasingly prevalent over the past 20 years and that notions of blameworthiness have often been employed to justify such intervention. Sometimes criminalisation was obviously necessary and overdue. Other developments, however, do not stand up to scrutiny and appear to be a blunt response to an illusory or over-stated problem. Like many commentators, we are perturbed by a trend to criminalise in the absence of compelling justification. This work will argue that this development is explained in part by a greater willingness to attribute blame for events, to demand that blame is imputed onto an individual or other legal actor, and that severe consequences should then follow. More will be said about definitions in Chapter One, but we employ the modern term blamestorming to describe the deliberate process of attribution. That ‘blamestorming’ is followed in the book’s title by blamemongers and scapegoats emphasises the fact that blamestorming is not a value-neutral exercise and that significant disparities in power are often involved. Blame is used in this work as a prism which affords one way to view contemporary criminal justice policy and practice. We readily acknowledge that blame is not the only ground on which recent policy has been justified. When clear tension exists between blame and alternative explanations or claims, this will be explored further but dictates of space mean that our analysis of other possible accounts could not always be developed as fully as we would have liked. Another function can be fulfilled by blame: it can be used to explain and it can be used to evaluate. Blaming someone for something may be a process worthy of examination but, because of the potentially adverse consequences of this process, it is imperative to assess whether the process is necessary and the finding and consequences warranted. Just as politicians and the media invoke blame too readily to justify potentially repressive measures, some criminologists are guilty of dismissing all instances of criminalisation as further proof of invidious v Blamestorming, blamemongers and scapegoats state control. Both accounts dissolve when exposed to the complexity of contemporary criminal justice. A meaningful assessment has to be more nuanced and context-specific. If this hinders the ability to make broad claims, so be it. Prior to commencing, we were confident that a book about the centrality of blame in the criminal justice process would be valuable. We were equally aware that writing such a work would be a complex undertaking and we would like to record our thanks to those who originally reviewed the proposal for their valuable suggestions to our initial proposal. Like all projects of this size, the contents and layout evolved as the work progressed – new areas cried out for inclusion and this inevitably came at the cost of some topics which we had planned to cover. Two key decisions were taken at the start. The first was that the book would address both domestic and international criminal justice: any study on blame which failed to consider how society apportions blame for the very worst crimes imaginable would be seriously deficient. Jurisprudence on the topic now exists as does a considerable secondary literature and we have been able to draw on both at various points. Second, the approach would be inter-disciplinary as blame interests those working in a variety of diverse areas of scholarship. One area which required fairly detailed analysis was criminal law theory, despite the book not being a legal study. It can easily be forgotten how dependent the criminal justice process is on the substantive criminal law. Deliberate decisions taken by parliament or the courts set the parameters of the criminal law and therefore determines what conduct can be responded to. Evaluating some crucial legal determinations demonstrated how judges also commonly invoke notions of blame when deciding whether particular forms of conduct should be viewed as criminal. As judicial interpretation influences decisions taken by police and prosecutors, one cannot sensibly divorce criminal law from criminal justice in this context. The book is organised as follows. Chapter One expands on the terms and concepts adopted in the title, considering ‘blamestorming’, ‘blamemongers’ and ‘scapegoats’ in turn. Through the use of contemporary and historical examples, we document how society seems more ready to hold individuals to account for their, and sometimes others’, actions. We start the chapter by detailing the tragic facts surrounding the death of a 22-year-old man. Justice seemingly demanded the punishment of his mother, but a causal analysis shows that her actions were but part of a factually and morally complicated story. Even if one could agree on how factual blame could be vi Preface apportioned in such a case, determining the extent to which she should be deemed blameworthy is highly problematic. That blame plays a vital role in the criminal justice system, that blame is inherently complex, and that society is prepared to find blame more easily than in the past are themes that emerge at the start of the study and ones to which we return throughout. Chapter Two provides an overview of the role of blame in English criminal justice. Although the chapter cautions against viewing the criminal trial as the normal response to deviant behaviour (most offenders are diverted pre-trial or admit guilt), the trial remains paradigmatic and the chapter’s structure follows the process from mode of trial to sentence. It is argued that blame informs, though does not fully explain, both of these decisions. At this point in the book the value of blame both to illuminate and to evaluate becomes apparent. Sentencing represents a determination which will adversely affect the offender; as harm is being inflicted, it needs moral justification.