Artificial Intelligence and rationality as psychological issues

At HERC we publish blog articles covering a wide range of issues that broadly relate to harm, evidence, crime and justice. In keeping with the critical position of HERC, our aim is to highlight all sides of the debate and to facilitate a discussion so that all voices are heard on the issue.

In this blog post, Dr Lee John Curley discusses the widespread fears of AI as involving the loss of ‘our special human capacity of rationality’. Lee John Curley is a lecturer in Psychology at The Open University.  

Our fear of Artificial Intelligence once related to the terminator and Skynet, but in a time of economic uncertainty and mistrust over how artificial intelligence uses human data on the internet, new fears are more related to employment and human rights. Some people see the development of AI as a process in which we recklessly hand over our special human capacity of rationality to machines, condemning ourselves to low paid jobs, or even unemployment. In this week’s blog, I explain why psychologists are interested in rationality. I present the fable of Prometheus, the great titan who was punished for passing on his godly skill of rational thought. I highlight the lessons that can be learnt from this story when considering potential implications of artificial intelligence. 

Rationality or the ability to integrate information to choose an option with the most utility, is a cognitive ability that may be at the heart of what makes us human: the very meaning of the term Homo sapien even means “wise man”. Rationality has become such as constant in human behaviour that the pillars of society (law, economics and medicine) all assume that decision makers employ rational processes when faced with an option. This blog will delve into how the ancients viewed rationality, how modern cognitive psychologists view the term and how rationality will shape the future. 

However, rationality has been studied by more than just cognitive psychologists. Mathematicians, philosophers, social psychologists and psychoanalysts have all studied rationality, each with different viewpoints on rationality and the extent to which humans participate in rational behaviour.  

In Ancient Greece, the world was explained in terms of symbolic entities (gods, deities and titans) that represented observable phenomenon. For instance, Gaia represented the earth, Poseidon the seas, and the almighty Zeus was symbolic of the heavens above. Some of these powerful beings, however, represented very human traits. Prometheus (meaning forethought) and Epimetheus (meaning afterthought) represented the rational and non-rational (or intuitive) part of the human mind, respectively. Once these titans fell out of favour with the Olympians, however, their roles of rationality and intuition fell to the gods Apollo and Dionysus. Prometheus was the champion of thinking ahead and choosing the long term right path, despite the negative short term effects for himself. This is evidenced in the story of Prometheus where he steals fire for the ancient humans, against Zeus’s instructions, and is punished until he is freed by Herakles. Despite the negative ramifications for himself, he metaphorically, and literally, ignites rationality, abstract thought and logic into the minds of Homo sapiens; thus simultaneously making humans more like the deities they worshipped, and the gods less special. The creation of the Prometheus myth shows that rationality is a key aspect of humanity, and that the ancient Greeks were aware of the power of rationality. 

During the Renaissance, there was a reawakening of rationality, with mathematical (or normative) concepts, such as probabilities, essential to modern mathematical and psychological theories of rationality being invented. With rationality and probability becoming interlinked, humans were viewed to be “Laplacean demons”. In other words, ‘we’ were viewed to be rational beings, who had unlimited cognitive capacity and were not influenced by the limitations of the mind. In association with this development in rationality and mathematics, institutions such as law, medicine and economics were all developing fields and were influenced by the perspective of the time (i.e., to be human was to be rational). 

This was the main viewpoint until the cognitive revolution in psychology and the seminal work of Tversky and Kahneman. They conducted a number of experiments in the 70 and 80’s (and even won a Nobel Prize) for highlighting that although rationality should govern our minds when making decisions, that instead, individuals sometimes deviate from rational principles and make decisions based on intuitive cognitive short-cuts called heuristics (Greek for find or discover). Their research showed that humans are flawed and that we can make biased decisions. 

This perspective has dominated the majority of the last 50 years of work in the field of decision science. Contemporary decision scientists, however, see intuitive thought and rationality as brothers (similar to the Greek myths surrounding Prometheus and Epimetheus). The dual process model of decision making suggests that two different modes of cognition (system 1 and system 2) governs our decision making. System one is an intuitive mode of cognition with a plethora of heuristics making up the components of said system. System two on the other hand is the rational part of the mind, which may be unique to humans. System two is believed to be more effortful and conscious than the primitive system one mode of cognition. The modern mind-set of rationality is that it is possible to make rational decisions, but that it is difficult and effortful, thus researchers believe that humans much prefer to default to system one. 

This flawed perspective of human rationality has led to rationality, the very essence of humanity, becoming synonymous with artificial intelligence and robotics. Normative (mathematical) models of rationality have been shown not to reflect the entirety of human behaviour, whereas artificial intelligence (AI) may be a new frontier to apply these classical models of decision making. Unlike human beings, artificial intelligence can be programmed to accord with rational principles and statistics.  Therefore, what classically was seen as something unique to humans, the thing that made ‘us’ special, may in the future become a robotic trait. This mirrors Prometheus’s gift to ancient humans which lead to deities becoming less godlike, and humans becoming more like their creators. 

Now computers are powerful enough to win against a human at chess, and it is estimated by researchers that AI will exceed human ability in a number of tasks (e.g., language translation) in the next 10 years. It is even believed that by 2053 AI could replicate the abilities of a surgeon. This speculation suggests that the expansion of artificial intelligence into the realms of rationality may cause humans to become obsolete, with more rational, consistent, and efficient computers replacing biased and flawed humans. This could cause a number of occupations traditionally employed by humans to be performed by complex AI.

Others, such as Peter Fleming, instead argue that AI will cause an increase in poorly paid jobs, as he argues that an important factor in AI being utilised in a profession is, will it be economically viable? Therefore, Fleming suggests that low skilled and low paid jobs will not be replaced. He expands on this point by suggesting that AI that partially automates a job though an app will also reduce the skill required by the employee, thus decreasing the relevant pay required for the service (e.g., Uber driver with app vs. traditional taxi driver that receives training). Furthermore, contrary to contemporary belief, the age of the AI may have a negative effect on human standards of living. Humans, like Prometheus, may suffer the negative consequences of passing on the sacred flames of rationality to an intelligence that ‘we’ created.

In summary, rationality has always been viewed by humans as a god like ability. The story of rationality is the story of humanity, the way we view rationality changes how we view ourselves, and ‘we’ are becoming increasingly closer to mirroring the story of Prometheus and igniting the flame of rationality in non-organic decision makers, and thus decreasing the specialness of humanity. By giving this special ability to AI, we may be condemning ourselves to low paid jobs; or even unemployment. Further bringing to life the story of Prometheus, as the great titan who was punished for passing on to humans his godly skill of rational thought.

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Out of Area Policy as Organised Banishment

At HERC we publish blog articles covering a wide range of issues that broadly relate to harm, evidence, crime and justice. In keeping with the critical position of HERC, our aim is to highlight all sides of the debate and to facilitate a discussion so that all voices are heard on the issue.  

In this article Vickie Cooper examines ‘Out of Area’ policy practice as a form of banishment. Vickie Cooper is a senior lecturer in Criminology at The Open University.

Roman Army Punishment, Banishment
Source:https://www.sciencesource.com/archive/Roman-Army-Punishment–Banishment-SS2744054.html


Banishment

Banishment is a term used to describe the diverse arrangement of policy practices and techniques that, although not always visible, result in the coercive removal of destitute populations from their home communities. Banishment involves the legal requirement to leave a specified geographical area for an extended period of time. Versions of banishment have been used throughout history, as an exceptional mode of punishment and coercive organization of labour: from the Roman empire to European colonialism, relegatio and transportation were used as exceptional forms of banishment exercised over key marginalised groups.

But what if banishment is not an exceptional mode of organising marginalised groups? What if it is a normal function of the modern state, exercised by local authorities as part of their modus operandi, to banish marginalised groups out of the local vicinity?  As the government strips away crucial welfare support against the backdrop of austerity and Brexit politics, public institutions are finding ways of banishing economically marginalised groups in this hostile austerity-driven environment.

Out of area policy

A recent report by the All Party Parliamentary Group on ‘sent away children’,  revealed that approximately 60-70% of all children living in children’s homes are placed out of area by statutory authorities that have a legal duty to safeguard and protect them. ‘Out of area’ is the official policy term and practice used by statutory authorities to move people from their home communities and relocate them in a ‘host-area’. A host area is, strictly speaking, anywhere that is located outside the geographical boundaries of the statutory authority responsible for looking after them. In the case of children living in care, children can be placed more than 100 miles away from their home community.

But out of area policy practice is not unique to children living in care and drawing on two examples – community punishment (1) and housing (2) – this article explains how out of area policy is exercised over a range of economically marginalised groups, that effectively results in their banishment from the key areas.

Out of area policy in community punishment

In 2013, I conducted a research study called No Fixed Abode, which revealed the routine practice of sending convicted women out of area, to serve a community punishment away from their home communities.  Like children in care, the main reason for sending convicted women to a host area is due to the paltry and geographically patchy provision of probation hostels available for women, across England and Wales. Presently, there are only 6 probation hostels for women, compared to 94 for men. There are no probation hostels available for women in Wales or in London.

Given this paltry level of provision, it is no surprise that half of all female residents in probation hostels in England and Wales come from out-of-area. The women I interviewed as part of this study revealed that serving a community punishment out of area is supremely complex.  Women had to travel to and from their host area and home community on a fortnightly basis: to visit their children; undergo a ‘staged return’ back to their home communities; and maintain contact with the probation authorities responsible for their ‘community’ supervision. Where some women were pleased about the prospect of returning to their original home communities, others did not plan to return to their home communities at all. One woman I interviewed had to travel 200 miles between her host community and home community, just to maintain contact with her probation officer. At the same time, she was being actively supported by probation hostel staff to be permanently rehoused in the host community.  This complex arrangement not only highlights the redundant use of the term ‘community’, but further reveals that permanency of their banishment.

Image result for femme maison louise bourgeois
Source: image from ‘Femme Maison’ by Louise Bourgeois

Until recently, sending women out of area to serve a community punishment was rarely acknowledged as a draconian or discriminatory practice. And even though Probation has conceded for some time this practice is incompatible with equalities law, it is still frequently used over women in the community. Then, in May 2017, a judicial review in the Supreme Court ruled that the uneven distribution of probation hostels unlawfully discriminates against women and the No Fixed Abode study was used by the Howard League for Penal Reform as part of their evidence to assist this Supreme Court decision. A landmark ruling, this judgment means that women who are sent out of area to serve a community punishment can now bring legal proceedings of unlawful sex discrimination to court.

Out of area policy in housing

But, as highlighted in the case of children in care, banishing people out of area is not a unique policy practice. As thousands of households free-fall into homelessness in the aftermath of the global financial crash, homeless adults and children are also routinely sent out of area; to live outside the purview of the housing authority that has a legal duty of care to them. If homeless applicants refuse the housing offer, then local authorities can, and often do, declare them ‘intentionally homeless’. From the limited evidence that is available, there has been an extraordinary rise in the numbers of homeless households sent out of area to live in temporary accommodation. In 2017, 22,050 homeless households were sent out of area, constituting a staggering 248% since 2011. In 2015, figures obtained by The Independent newspaper show that several London local authorities have displaced 50,000 homeless people to different boroughs inside and outside of London.  

A group of people standing in a room

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Source: image from film, I, Daniel Blake by Ken Loach. The family in this film are displaced from London to Hull.

Emerging evidence, testimonies and judicial reviews suggest that local authorities are failing in their basic duty to adequately support homeless families. Perhaps the most widely known case is that of Nzolameso v City of Westminster. Westminster City Council provided full-duty housing support to Ms Nzolameso when she could no longer afford her private rented property as a result of the Benefit cap (introduced as part of the Welfare Reform Act in 2012). But rather than rehouse her in Westminster or surrounding boroughs, Westminster Council offered Ms Nzolameso and her family rehousing in Bletchley, Milton Keynes. The appeal went to the Supreme Court and was upheld on the grounds that Westminster Council had not made sufficient enquiries about the impacts of rehousing the family in Milton Keynes.

Housing families out of area has produced an impossible bureaucratic scenario that can only be described as surreal.  For example, several London boroughs have rehoused their homeless applicants in Milton Keynes (as highlighted in the case above). But Milton Keynes authorities are at the same time rehousing their homeless applicants in Bedford, Northampton and Dunstable and recently purchased 110 apartments in Luton, to permanently rehouse their homeless applicants there. We seem to now be on a never ending cycle of displacement and banishment.

Out of area policy as organised banishment

Against the backdrop of austerity-driven political climate and Brexit politics,  banishment has become the modus operandi to addressing a lack of resources in local authority areas. Out of area policy variously results in the banishment of key marginalised groups and local authorities will justify these practices on the basis that it’s in the best interest of the people they send away. But judicial reviews and parliamentary inquiries show that its discriminatory and amplifies the risk and vulnerability of those affected,  especially in the case of children in care. We must therefore cast a critical lens on policy legislation that allows statutory bodies to circumvent or, at best, complicate their legal duty of care; to safeguard and promote the welfare of children and vulnerable adults.

The Anglo-American jury system: is there another way?

At HERC we publish blog articles covering a wide range of issues that broadly relate to harm, evidence, crime and justice. In keeping with the critical position of HERC, our aim is to highlight all sides of the debate and to facilitate a discussion so that all voices are heard on the issue. 

In this article Lee John Curley highlights the key differences within the Anglo-American justice model and difference across other international justice models. Lee John Curley is a lecturer in Psychology at The Open University.

Image from: https://commons.wikimedia.org/wiki/File:The_Jury_(1861).jpg

The Anglo-American verdict system has become the norm in popular culture representations of jury’s and the courtroom. The dichotomous verdict system of ‘guilty’ and ‘not guilty’ is so widely known that it often surprises people to learn that other jurisdictions have different legal systems that differ in relation to the prosecutions role and the verdict options available to the jury. Further the adversarial system (where two parties present their side of the case to the jury) is just one method of justice, with many European countries favouring the inquisitorial system (where the court, or elements of it, is involved in fact finding). The aim of this article is to briefly describe some of the different verdict options and methods of justice employed around the world. I would also urge psychologists and criminologists to utilise these natural differences in jurisdictions for future research enquiries, as alternative methods of practice may help to aid how decisions are made in the Anglo-American courtroom.

Different verdict systems

In Spain and Russia, juries are provided with a list of questions surrounding the guilt of a defendant. For instance, Spanish judges pose a list of propositions, some for and against the defendant, and the jury indicates to the court whether or not each of these propositions have been proven or not proven. The jury must then confirm or deny “the proof of the defendants guilt” (p.249). If guilt is proven on at least one of the charges, the jury can ask for a suspension of sentence or amnesty. In Russia, however, juries are only asked three basic questions: 1) whether the circumstances surrounding a crime have been proven; 2) is the defendant proven to be the perpetrator; 3) is the defendant guilty of the crime. These systems allow jurors to decide on the credibility and reliability of each piece of information in a case in a more explicit manner than the Anglo-American verdict system.

Image from: https://en.wikipedia.org/wiki/Royal_Arms_of_Scotland

Even the verdict systems within the United Kingdom’s vary, as jurors in Scotland have three verdicts available to them in a criminal trial: 1) guilty; 2) not guilty; 3) not proven. Guilty and not guilty verdicts are used in the same manner as their counterparts in England and Wales, and America. The ‘not proven’ verdict, however, is a distinctive feature of the Scottish criminal justice system and is as unique to Scotland as the Loch Ness monster and Iron Bru. This verdict is a secondary acquittal verdict and has the same legal applications as the ‘not guilty’ verdict. However, the ‘not proven’ verdict has not been clearly legally defined, which has led to three empirical investigations being conducted on how the introduction of this verdict influences the usage of ‘guilty’ and ‘not guilty’ verdicts (See Curley, Maclean, Murray & Brown, 2019; Hope, Greene, Memon, Gavisk, & Houston, 2008; Smithson, Deady, & Gracik, 2007).  All of these studies found that the introduction of the ‘not proven’ verdict does not decrease the number of guilty verdicts given, but does decrease the amount of ‘not guilty’ verdicts given.

These results may highlight that the adversarial system naturally creates doubt in the minds of the jury surrounding the innocence of the defendant, and that this doubt may cause jurors to favour the ‘not proven’ verdict over the ‘not guilty’ verdict when the prosecution has not proven their case adequately enough. In the Scottish system, proof of guilt is perceived in a more realistic way, with the ‘not proven’ verdict introducing doubt into how guilt is perceived. The ‘not proven’ verdict also makes the ‘not guilty’ verdict a more clear verdict, even if it is not the intention behind the verdict, as the availability of the ‘not proven’ verdict highlights that a jury that selects the ‘not guilty’ verdict believed the person to be truly innocent. If the ‘not proven’ verdict is not available, however, it is unclear why a ‘not guilty’ verdict is given, as the verdict could be given if the accused was believed to be innocent by the jury and/or if the Crown did not prove their case. Although it is not a legal requirement to know why an acquittal verdict is given, because of contempt of court and because thelegal burden rests upon the Crown, the information that the ‘not proven’ verdict communicates to the courtroom should be utilised more. For instance, it should be used to help judges decide on a sentence if the accused is given a guilty verdict for similar charges in a future court, or it could be taken into account when individuals who are given said verdict are applying for a PVG check (the Scottish version of the disclosure and barring service check in England and Wales).

Nevertheless, the not proven verdict currently finds itself in the dock, with recent calls for its abolishment in Scotland due to claims that the verdict decreases the chances of rape victims attaining justice in criminal trials. Furthermore, more research is needed to test how the not proven verdict is used in criminal cases before said verdict is implemented in other jurisdictions.

Inquisitorial system

Image from: https://www.publicdomainpictures.net/en/view-image.php?image=164508&picture=judge-gavel

Even stranger to the legal layperson is the inquisitorial system. In the inquisitorial system, judges (maybe plural depending on the jurisdiction and crime) are involved in a fact-finding mission where they may interview several legal actors (e.g., defence, prosecutors, and witness) to arrive at the “’correct’ outcome of the case”. This system is commonly used in European countries (e.g., France). In this system, the prosecution does not have a “burden of proof”, and truth does not arise from two competing standpoints presenting a case to a neutral group (a jury); rather, truth arises from investigating the evidence in a case. The trial then is not conducted to provide evidence to a jury, but to allow the judge(s) the opportunity to investigate how accurate the prosecution’s case is. The defences involvement in an inquisitorial trial involves trying to create doubt in relation to how the judge(s) perceive(s) the prosecution’s case.

The extent to which the inquisitorial system, and its use of judges, leads to more accurate legal outcomes is unknown, and research from psychology generally suggests that there is a contradiction to expertise, with experts utilising more biased means of evidence evaluation and judgment than novices. Further, a classic jury study by Kalven and Zeisel found that juries and judges agreed with another on the verdict given a substantial amount of the time; although this study was conducted in the adversarial system. Nevertheless, future research should be conducted to assess if one system (inquisitorial vs. adversarial) is more efficient/accurate than the other.

Summary

The aim of this article has been to highlight that the courtroom is a subjective world that is conducted in different methods and has different permutations within each of said methods. Each system has positives and negatives, and psychological research has not fully investigated how different legal environments (three vs. two verdicts; inquisitorial vs. adversarial) influences the mind of the decision maker when they are faced with a judgment surrounding the guilt of a defendant. Future research should investigate this more thoroughly to assess if the Anglo-American system can utilise different aspects of various legal systems to positively influence the outcomes reached by juries.

Reference list

Curley, L. J., MacLean, R., Murray, J., Laybourn, P., & Brown, D. (2019). The bastard verdict and its influence on jurors. Medicine, Science and the Law, 59(1), 26-35.

Hope, L., Greene, E., Memon, A., Gavisk, M., & Houston, K. (2008). A third verdict option: Exploring the impact of the not proven verdict on mock juror decision making. Law and human behavior, 32(3), 241-252.

Smithson, M., Deady, S., & Gracik, L. (2007). Guilty, not guilty, or…? Multiple options in jury verdict choices. Journal of Behavioral Decision Making, 20(5), 481-498.

Sense and Solidarity in the Debate on Transgender Prisoners

At HERC we publish blog articles covering a wide range of issues that broadly relate to harm, evidence, crime and justice. In keeping with the critical position of HERC, our aim is to highlight all sides of the debate and to facilitate a discussion so that all voices are heard on the issue.  In this spirit, we would be happy to receive blog posts as comments or responses to this or any other post we publish.

In this article Mike Nellis sets out some of the issues on trans prisoner policy debates. Mike Nellis is Emeritus Professor of Criminal and Community Justice in The Centre for Law, Crime and Justice at the University of Strathclyde.

I agree with Richard Garside’s (Director of the Centre for Crime and Justice) helpful suggestion that the pressing practical problem of whether male-born transgender women should be housed in women’s prisons should be settled, in particular cases, by soliciting the views of women prisoners themselves. It is a ragged, imperfect solution, but no better (more ethical) options are currently available to the Prison Service, once trans women sentenced to custody, rightly or wrongly,  have become their responsibility. I also agree with Garside’s  readiness to use the prefix “male-born” in this debate; it is more or less relevant in different situations, and may actually be irrelevant in some, but the sexual assaults perpetrated by male-born Karen White in New Hall women’s prison understandably put it on the policy agenda. Sarah Lamble, anticipating that such limited prison democracy will always lead to the rejection of  trans women, has accused Garside of falsely polarising the interests of transgender women and women prisoners, and of bad faith: “Keeping prisoners in conflict with one another”, she says, “and whipping up fear of marginalised groups is a classic strategy to ensure prisoners don’t collectively challenge the system that is actually the real source of harm against them”. I don’t think that’s what Garside was doing. 

Lamble’s critique of Garside’s argument isn’t premised on the constraint of what is or should be currently available to the Prison Service and moves away from practical issues to paint a bigger political picture of what is at stake, perfectly valid, if not beyond contention. She reframes Garside’s concern from a theoretical standpoint which is far removed from his, indeed its polar opposite, bluntly premised on the notion that ‘trans women are women’, as if this were both self-evidently true and intrinsically progressive, disdaining disagreement with this as a “noxious” thought-crime. From such an abstract standpoint, any non-trans women prisoners and penal reformers who question the right of male-born trans women to share penal space are easily rendered misguided, un-woke and pernicious. The fact is, this “no-difference” view of trans women is by no means axiomatic and is not simply made so by forcefully insisting upon it. It is contested by sufficient numbers of women, and by enough feminists with progressive credentials, so I don’t feel entirely uncomfortable questioning its progressive potential myself.

Gender fluidity is a given and must be accommodated by societies: it will be a struggle on multiple levels. But the case for arguing that trans people should be treated with dignity and respect and, when vulnerable, entitled and enabled to be  safe – if that is what is at issue here – does not depend on a claim that they are exactly the same as people whose gender identity is comfortably and perhaps unthinkingly tied to their biological sex. Social acceptance on these terms would be too long coming; some, probably the majority, of non-trans people would not accept the truth of it. Transgender people can and should be respected and accepted regardless of their difference. “We are all more simply human than otherwise”, Harry Stack Sullivan used to say, and the forms in which our humanity is acceptably expressed are more varied than we used to think.   

If, for Lamble, there is more than respect for difference at issue here – if her argument is that the activism of transgender people is intended to relativise and disrupt all prevailing conceptions of gender identity, and that this is desirable because a)  that is the only way transgender people will feel or be fully recognised or b) some kind of collective human liberation would result from it, well, let that argument proceed in the spaces that are open to it. I’d rather the lives of people in prison were not pressed into service to advance this  larger argument, because most trans people will not find themselves in prison. Let’s not pretend that, whatever new social and psychological possibilities the “no-difference” argument opens up, that its articulation helps to address the specific practical problem  that Garside was wanting to solve. Equally, let’s not pretend that seeking tenable  solutions to here and now problems – reducing fear and harm, settling interpersonal and institutional conflicts, as far as they can be – always forecloses necessary, longer term political change. It might, but it need not. The tension here is an old one, and the advice Stan Cohen (1988) offered years ago in It’s All Right for You to Talk, adapting Mathiesen’s idea of “the unfinished”– warning practitioners not to heed the kind of theory which  requires sacrificing here and now kindness, empowerment (or democracy) for the sake of putative political transformation in the future – remains valid. Combine the two. Let the former inform the latter. Be the change you want to make.

Difference is defensible. Whilst the parallel is inexact, colourblindness – seeing no difference – proved limited, and often offensive, as a pseudo-form of anti-racism, and I need convincing that transgender politics will play out differently, if difference is denied and nominal assimilation into the gender mainstream made into the core demand. The denial of difference by male-born transgender women and their academic allies can create strange optics: it can all too easily look like a covert, patriarchal colonisation, or appropriation of female subjectivity and female space, which is why some feminists are, at the very least, wary of it. This may not accord at all with the inner experience or aspirations of some, even most, transgender women, but it seems unwise to rule out the psychological possibility of it, and the oppressive actions towards vulnerable women that might flow from it. Transgender women need not be depicted as paragons of virtue or expected to affect a persistently gentle demeanour in order to gain moral recognition, but  as Lamble rightly says, “the reality is that hurt people often hurt other people. These painful enactments of trauma are prevalent in women’s prisons and will play out whether trans women are present or not”. All true, but what if this already bleak scenario is compounded by a traumatised trans woman? What state of mind, exactly, was Karen White in when she committed those sexual assaults? Who did she think she was?  

Lamble pushes the implications of her “no-difference” argument to extremes, believing, it seems, that she is wielding the sword of truth against a deluded and indifferent hegemony. It’s not the way to win friends and influence people. “These groups” she says, “feed false claims that trans rights and women’s rights are in conflict with one another, despite the fact that many women-only organisations and service providers have been successfully operating with trans inclusive policies for decades.” The a priori judgement that false claims are being made here – the “no difference” notion, again – hinders clarity of thought: in the abstract it may be the case that trans rights and women’s rights don’t conflict (both can be grounded in human rights), but in specific concrete circumstances, depending on what the particular individuals perceive, need and want, they might well conflict. That conflict then has to be practically addressed, not just theorised, or reframed. Lamble’s point that “many women-only organisations and service providers” have become trans inclusive is relevant but not decisive: as she  is elsewhere keen to affirm, prisons are not spaces like any other, and what works in other organisations can’t simply be assumed to work equally well in them. But – sometimes – they just might, and I’m not quite as negative as she is about the prospect of women prisoners democratically accepting a trans woman alongside them (see Kushner 2018). It would need to be a carefully managed process, and acceptance  would not always be the outcome. The response to rejection needs consideration. Lamble’s warning about setting precedents for prisoners to “democratically” include and exclude other categories of disliked people is fairly made, awkward but probably not intractable. 

Solidarity on the Left – if that is where Lamble positions herself – is notoriously friable, and it never helps to misrepresent putative allies. Lamble claims that Garside “selectively takes the problematic behaviour of some individuals and attaches it to trans identities as a whole. Such framings portray trans women as if they are the greatest threat to non-trans women in prison”. I don’t see Garside doing this at all: he focussed very specifically on “the problematic behaviour of some individuals” and proposed a practical, raggedly  democratic solution to that possibility. Nowhere does he imply “that women’s prisons are places of ‘safety and refuge’ until trans women come along”. The Centre for Crime and Justice Studies is well aware of the limits and deficiencies of women’s prison’s, and equally concerned that we “create real places of safety and healing in our communities”. It will take serious, relentless political struggle to do that and a high degree of solidarity among activists will be needed to mobilise consensus on it. Whatever its merit in advancing transgender interests more generally, I’m not sure that Lamble’s critique of Garside, for all its intellectual bravura, actually gets us closer to that.

References

Cohen S (1988) It’s Alright for You to Talk: Political and Sociological  Manifestos for Social Work Action.  Oxford:  Transaction Books.

Kushner R (2018) The Mars Room. London: Jonathan Cape

Mike Nellis is Emeritus Professor of Criminal and Community Justice in The Centre for Law, Crime and Justice at the University of Strathclyde.

Why context matters in the trans prisoner policy debates

At HERC we publish blog articles covering a wide range of issues that broadly relate to harm, evidence, crime and justice. In keeping with the critical position of HERC, our aim is to highlight all sides of the debate and to facilitate a discussion so that all voices are heard on the issue.  In this spirit, we would be happy to receive blog posts as comments or responses to this or any other post we publish.

In this article Sarah Lamble sets out some of the issues on trans prisoner policy debates. Sarah Lamble is a Reader in Criminology & Queer Theory at Birkbeck, University of London.

‘Let women prisoners decide’ on trans policy sounds democratic but is misleading and risks feeding a wider trend of anti-trans groups using women prisoners for their own political agendas.

In a recent blog post, the Director of the Centre for Crime and Justice Studies (CCJS) argues that non-trans women prisoners should decide whether trans women should be able to ‘share space’ with them in prison.

To suggest that prisoners should determine trans prison policy sounds, on the surface, like a reasonable and laudable position. Certainly prisoners get very little say on the policies that impact their daily lives and should have greater opportunities to feed into decisions that affect their wellbeing. However, what the CCJS Director is actually arguing is that some women (i.e. non-trans women) should decide the fate of other (i.e. trans) women. The argument only makes sense if you already assume that trans women are not women – which is consistent with the Director’s views as expressed on social media. But putting aside the noxious debate about whether ‘trans women are women’, let’s consider the actual context of his argument.

Over the past year or more, mainstream media and social commentators have been peddling false and misleading information about trans people in general and trans prisoners in particular. These reports—many of which are unreferenced, not properly fact checked and rely on anecdotal and decontextualized examples—consistently portray trans women as inherently dangerous to other women and as disproportionately likely to be sex offenders. This is the wider context in which the argument is made to ‘take it to the prisoners.’ But if you tell one group people that another group of people are sex offenders and then ask the first group if they want to share space with the second group, the answer is very likely going to be no. This is particularly the case in prison, where there is little status lower than someone deemed a sex offender.

If we did put the question to prisoners, which specific prisoners are we going to ‘let decide’? There is certainly no consensus on this issue outside of prison, so why would one expect there to be a consensus inside prison? 

Prisons, like society more broadly, include people with a range of views, and this means that prisoners include people with both trans-positive and transphobic views. Prisoners are not immune to the discriminatory social norms that are pervasive in society.  Though it may be unpalatable to admit, there are some prisoners who don’t want to share spaces with a whole range of other women. There are white women who don’t want to share space with black women; straight women who don’t want to share space with lesbians; British-born women who don’t want to share spaces with migrants. Are we also going to let these women decide and endorse a segregationist logic in prison?  These kinds of identity-based separation strategies often result in greater punishment for marginalised groups, as evidenced in the enduring racial segregation practices of California prisons and the Virginia prison which came under fire for separating women who were deemed too ‘butch’ / ‘masculine’.

We should be very wary of arguments that pit one group against another, particularly in prison, where scarcity of support combined with competition for resources means that prisoners are routinely and actively discouraged from solidarity with one another. Keeping prisoners in conflict with one another and whipping up fear of marginalised groups is a classic strategy to ensure prisoners don’t collectively challenge the system that is actually the real source of harm against them.

Prisoners have very limited autonomy and control over their lives when locked up. We should be supporting them to exercise greater agency, particularly around issues that increase their chances of surviving the harsh reality of prison. However, if women prisoners were given a choice about what issues they most want a say over, it is unlikely that trans issues would be top of the list.

It is concerning that many of the individuals currently bestowed with ‘expert’ status on trans prison issues have no experience of working directly with women prisoners, no credible history of researching trans prison issues, and very limited engagement with wider LGBTQ+ communities. Instead, these individuals regularly quote from ‘reports’ written by groups who have recently sprung up to ‘defend the rights’ of non-trans women in the wake of growing efforts to support trans people. Many of these groups make anti-trans arguments sound reasonable and legitimate to those who are understandably concerned by the news reports they hear but have little knowledge of the issues. These groups feed false claims that trans rights and women’s rights are in conflict with one another, despite the fact that many women-only organisations and service providers have been successfully operating with trans inclusive policies for decades.

Many of these same trans critics, until recently, have shown very little interest in women prisoners or prison issues more broadly – but are suddenly ‘concerned’ about the well-being of women in prison. For those of us who have been working with women prisoners for decades, it’s hard not to be dubious of their motives. If these groups are concerned about women’s well-being in prison, where is their outrage about male prison guards who sexually assault women in prison? Where is their concern for the appalling lack of support for women leaving prison?  Why are these groups not setting up campaigns, media strategies, fundraising pages and information websites to address the crisis of women dying in prisons

Current discussions about trans prison policy are being reduced to a question of trans people’s ‘feelings’ versus non-trans women’s ‘right to be safe’. But this framing mis-locates the problem of danger. It not only denies the violence that many trans people face in prison, but selectively takes the problematic behaviour of some individuals and attaches it to trans identities as a whole. Such framings portray trans women as if they are the greatest threat to non-trans women in prison. 

As the CCJS Director said to the Times: “Women who end up in custody are individuals who’ve often experienced quite grotesque and traumatic male violence so being asked to share their places of safety and refuge with individuals who they not unreasonably consider to be male and a threat to them — regardless of whether they are or not — is deeply problematic.”

The implication here is that women’s prisons are places of ‘safety and refuge’ until trans women come along. Such claims deny the reality of prison life: the mistreatment, abuse and harm that women face in prison. It also ignores the violence that non-trans women enact on other women, including the numbers of non-trans women in prison for sexual offences.

The CCJS Director and others are right to point out that many women in prison have experienced immense trauma. But claiming that separating trans women from non-trans women is necessary to protect women from further trauma, misunderstands how trauma plays out, particularly in prison, and misconstrues the processes required to heal from trauma. 

Trauma and vulnerability, particularly in prison, can manifest itself in a myriad of ways. Survivors of violence can be triggered by all sorts of things; not just the appearance of a person who reminds them of their abuser, but a colour or smell, an article of clothing.  Part of the process of healing from trauma is learning to differentiate one’s abuser from others with a similar characteristic and learning to distinguish between an object that reminds a survivor of her trauma and that actual event itself. This healing process is difficult for many survivors but is worsened by the oppressive, controlling and inhumane prison environment where any form of therapeutic support (if available at all) is structured by an overall punitive regime. 

These challenges are heightened by the fact that prisons are filled with other people who have also experienced deep trauma with very little resource or support to navigate it. In these circumstances, many people respond to trauma not only through vulnerability, but also through conflict, self-defensive and sometimes self-destructive and violent behaviours. The reality is that hurt people often hurt other people. These painful enactments of trauma are prevalent in women’s prisons and will play out whether trans women are present or not.

The problem with framing trans women as an inherent or perceived threat to other women, is that this conflates problematic individual behaviour to group identities. This is a longstanding strategy for propagating discrimination and oppression. It is the same tactic that has been deployed by anti-gay campaigners, who portray gay men as paedophiles and lesbians as unfit mothers. The current demonisation of trans women in general and trans prisoners in particular follows a long history of stigmatisation and scaremongering, which dresses up prejudice and discrimination under the guise of concerns for safety.

The public at large doesn’t have time to fact check every media article they come across. So it is understandable that many people are being swayed by transphobic news articles and ‘reports’. This is made worse when such views are legitimised by people in positions of power who use their professional authority and access to media platforms to amplify and reframe trans-hostile views as though they are simply part of ‘reasonable debate’. The underlying problem is not a lack of debate but rather that the debate is being shaped by misleading and inaccurate information. These ‘debates’ are not simply about philosophical or political differences; they are having a direct impact on prison policy and prison life. The current framing of these debates locks people into intractable positions that limit our capacity to confront the key problem that actually needs to be addressed: how to reduce both interpersonal and state violence and how to create real places of safety and healing in our communities.

Dr Sarah Lamble is Reader in Criminology & Queer Theory at Birkbeck, University of London and has been involved in prisoner justice work for more than 15 years.

The Johnson Government: Working for the Brexit Clampdown

Joe Sim, Professor of Criminology, Liverpool John Moores University and Steve Tombs, Professor of Criminology, The Open University

As the country teeters on the brink of the chaos of an impending no-deal Brexit, Boris Johnson’s administration has entered electioneering mode. The administration is following a familiar path that has a history of at least 40 years in the Tory party: first, that attitudes and actions towards the EU are not at all about any ‘national’ interest but are about party interests and, specifically, keeping a Tory Government in power at all and any costs; and, second, invoking a tough on crime, law and order discourse to capitalise on popular anxieties to offer false certainties around security and a sense of protection.

Mobilising Fear

On the latter – the subject of this short piece – virtually the first act of the incoming Prime Minister Johnson was to announce the recruitment of 20,000 police officers in order “to make our streets safer”. This was followed by a concerted set of announcements by the Prime Minister and his capital-punishment flirting Home Secretary Priti Patel; their Government would, they trumpeted, “shift the balance of fear” and fill criminals with terror, as they announced alongside the increase in police numbers a ramping up in sentences, stopping early release, and extending the right to stop and search – no doubt, Johnson added, prompting the “Left-wing criminologists” to “howl”. Priti Patel used the Sun on Sunday, the newspaper that emerged phoenix-like from the ashes of the crime-ridden News of The World, to cynically exploit the “attack on brave police officer Stuart Outten” which had taken place in London days earlier, an attack which she claimed “was a reminder that the police put their lives on the line to keep us safe”. Clearly, police officers are injured and killed during the course of their work, as the most recent death of PC Andrew Harper has shown, and their victimisation should not be denied. However, Patel’s comments somewhat obscure the fact that, compared with other occupations, policing is a relatively safe occupation. Deaths in these other occupations deserve to be treated with the same respect and consideration when lives are lost and families are irreparably damaged.

These are well-trodden, and therefore highly cynically chosen, paths. In 1979, the Thatcher government’s first major policy initiative was to implement the Edmund-Davies pay review leading to a spike in police numbers. The result?  A spike in the recorded crime rate. Home Office research concluded at the time that ‘whatever the benefits in terms of public reassurance or confidence, increasing visible police presence through extra foot or car patrols is by itself unlikely to reduce crime; nor does there seem much scope for a general improvement in detection rates’. Sir Robert Mark, the Met’s Commissioner, noted that police numbers had little effect on crime rates and ‘seen objectively against the background and problems of 50 million people it [crime] is not even amongst the more serious of our difficulties’. The idea that the present government’s prison building programme and tougher sentencing will reduce victimisation and increase public protection is also a fallacy.  In 1983, Leon Brittan instigated the biggest prison building programme of the twentieth century, alongside a tougher sentencing regime. It failed. In 1995, Michael Howard declared that ‘prison works’. He was wrong. There are no demonstrable relationships between prison numbers and recorded crime rates.

Cutting Social Support

By contrast, and to take the example of the offence category exploited by Priti Patel as she lauded the bravery of the police, knife crime may be a significant social problem but neither it, nor the conventional crime problem in general, will be solved by the blitzkrieg of criminalisation, punishment and pain rolled out in recent weeks. It is widely accepted that funding for early intervention services can prevent the numbers of young people finding themselves at risk of victimisation and offending. However, as Action for Children, the Children’s Society and National Children’s Bureau recently revealed, “between 2010-11 and 2015-16, spending on early intervention fell in real terms by 40%”, while Sure Start centres had their budgets halved in the 8 years to 2016. Meanwhile, Tim Bateman has highlighted “a massive contraction in youth service provision, leading to a sharp decline in the availability of constructive activities for young people, resulting in many of them spending more time on the street where risks may be higher”. Johnson and Patel have said nothing about reversing any of these spending cuts.

Crimes of the Rich and Powerful

Nor will the blitz on crime deal with rampant state-corporate criminality. It will not address income tax avoidance and evasion, which even on the Government’s own “laughable” estimate now stands at a record £35 billion per annum, nor the 36,000 deaths each year which the Government links to air pollution in the UK in its recently revised downwards estimate, nor the 50,000 work related deaths which occur year in, year in out in one of the wealthiest economies in the world. The cultures of immunity and impunity which allows the rich and powerful to engage in routine criminal activity will continue to be encouraged: programmes of deregulation and non-enforcement of law against businesses have been institutionalised since 2010 to the point where, for example, there are no officers to enforce law in some local authority areas, where some regulation has been privatised, and where prosecution in some areas are now non-existent. The changes will do little, if anything, to reduce the rampant levels of domestic and sexual violence against women, nor far-right extremism and racist attacks, nor homophobic violence, nor will they introduce desperately needed structures of democratic accountability into the criminal justice system.

What they will do, if these policy turns really do end up meeting the stated aim of putting 10,000 more people in prison, is exacerbate the dramatic levels of violence in British prisons. Therein, as the charity INQUEST recently noted on the basis of the Ministry of Justice’s own data, the 12 months to July 2019 showed: 86 self-inflicted deaths, up 6% from 81 in the previous year – that is, one every four days – of 309 deaths in prison in total. This is not to mention, in a 12 month period, that self-harm levels had “increased by 24% from the previous year, once again reaching record highs … In the child and youth prison estate, there was a 30% increase in self-harm incidents.”

Labour’s Political Opportunism

And what has the Labour Party had to say about this law and order noise, and the grim threat it poses to the already-restricted rights and liberties of those powerless communities and groups it purports to represent? Not surprisingly, the answer is very little.  Labour’s response has been based on political opportunism.  And so while Diane Abbott has pointed to some of the problems in the “Draconian approach” to the use of stop and search, Labour has failed to seriously contest the government’s announcements. There has been no informed critique of the prison building programme or of tougher sentencing or of the increase in police numbers. There has been no obvious strategy to curtail the brutal exercise of state power and to hold to account those state servants who routinely abuse this power through the capricious discretion they have on the streets and behind prison walls.  In fact, Labour’s policy has been to restore police numbers to their pre-cuts level, ignoring the criminological research which, as noted above, shows the negligible impact the police have on conventional crime.  What the party has demanded is an inquiry into the welfare and morale of police officers despite the fact that, compared with other jobs, policing is a relatively safe occupation. Again, as noted above, the systemic lack of health and safety is a key factor in the shameful levels of self-harm and deaths in custody. On this, there is silence.  Labour has allowed the government to articulate, effectively unchallenged, its toxic, punitive agenda. Such timidity should not be surprising; Labour has an abysmal track record on law and order when in government, reproducing the Tories’  relentless focus on working class crime and turning a blind eye to the systemic abuses of the state and the institutionalised criminality of the rich and powerful. 

Conclusion

In the world-view of Johnson and his media and political acolytes, ramping up the crime, law and order rhetoric is a vote-winner, a distraction from the Tories’ disastrous handling of Brexit, and the tooling-up of the state for post-Brexit disorder. In general terms, the Johnson government’s strategy can be understood as consolidating still further, in Stuart Hall’s words, the ‘[p]hilisitne barbarism’ begun under the first Thatcher government. It is an ideological strategy, a form of ‘regressive modernisation’, designed to ‘”educate” and discipline the society into a particularly regressive form of modernity, by paradoxically, dragging it backwards through an equally regressive version of the past‘. This regression will have dire consequences for communities and groups already stricken by the pitiless social and economic policies pursued in the last decade, and indeed, before. In 1972, the great American writer James Baldwin pointed out that ‘ignorance, allied with power, is the most ferocious enemy justice can have’. Fifty years on, Baldwin’s eloquent statement provides a fitting testimony to the cynicism, hypocrisy and naked self-interest inexorably driving the government’s law and order bandwagon. Inevitably, this will be followed by the ruthless rolling out of state power in order to maximise and maintain the corrosively exploitative, immoral and amoral neoliberal social order. However, for all its material and ideological power, it is contradictory and, just like the Prime Minister and his government, remains open to contestation and resistance. In these bleakest of times, it is important to remember and reflect on this point.

This article has been simultaneously published by the Centre for the Study of Crime, Criminalisation and Social Exclusion at Liverpool John Moores University, see https://ccseljmu.wordpress.com/ 

Part of the title of this article is from the title of the track by The Clash, ‘Clampdown’, on their 1979 London Calling album.

A sinister plan….

Are we being manipulated by a shady, secret enemy who is planning world domination? Or not? In this video, Dr Jovan Byford from the School of Psychology and Counselling introduces his research on conspiracy theories.

https://www.bbc.com/ideas/videos/how-to-spot-a-conspiracy-theory/p07j9sjk?playlist=made-in-partnership-with-the-open-university

You can also read about the research in module DD210 Living Psychology and in Dr Byford’s 2011 book Conspiracy Theories: A Critical Introduction, published by Palgrave Macmillan. ISBN : 9780230272798