Punishment and the 'blind symbiosis' of legal and rehabilitation work in the making of the 'ideal' defendant

Tata, Cyrus; Field, Stewart and Tata, Cyrus, eds. (2023) Punishment and the 'blind symbiosis' of legal and rehabilitation work in the making of the 'ideal' defendant. In: Criminal Justice and the Ideal Defendant in the Making of Remorse and Responsibility. Oñati International Series in Law and Society . Hart Publishing, Oxford, pp. 213-237. ISBN 9781509939947 (https://doi.org/10.5040/9781509939947.ch-011)

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Abstract

Judges, lawyers, probation and other professionals have to see themselves delivering legitimate punishment and control, rather than imposing unjustified coercion. Yet these professionals know they are also obliged to dispose of cases expeditiously. Most scholarly work on this apparent contradiction between ‘justice’ and ‘efficiency’ has been limited to a focus on the moral intentions of individual professionals. In contrast to this prevailing approach, and illustrated with examples from empirical research, I argue that the appearance of the contradiction is managed and often resolved in adversarial jurisdictions by the effects of unobtrusive inter-professional casework. Though they are officially separate professional and temporal activities, I show how the guilt-determination casework of judges and lawyers on the one hand and, on the other hand, the rehabilitation practices of probation, social work and other therapeutic professionals tacitly work together symbiotically. This symbiotic case-working realigns with and approximates the person’s account and posture to that of the ‘ideal’ defendant (or penal subject), who is seen voluntarily to accept responsibility and show remorse. This realignment of the person eases for professionals the apparent dilemma of balancing justice with efficiency. However, this symbiosis is not, and could not be, achieved by a planned conspiracy. Instead, it is enabled by the mutual blindness of one profession to the detailed, substantive work of the other. This mutual blindness is based on the depiction of criminal justice in the adversarial tradition as a step-by-step sequence of autonomous decision moments, each under the dominion of separate professions. Finally, I explore the implications for future research agendas.

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