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McNeill, F. (2011) Probation, credibility and justice. Probation Journal, 
58 (1). pp. 9-22. ISSN 0264-5505 
 
http://eprints.gla.ac.uk/43320/ 
 
Deposited on: 15th February 2012 
 
 

Enlighten – Research publications by members of the University of Glasgow 
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Forthcoming (2011) in Probation Journal 

Probation, Credibility and Justice1 

 

Abstract 

 

This paper explores the difficulties that arise for probation agencies or those that deliver 

community sanctions in developing and maintaining their credibility in prevailing ‘late-modern’ 

social conditions. It begins by questioning the limits of the pursuit and promise of ‘public 

protection’ as a source of credibility, and then proceeds to examine the emergence of an 

alternative strategy – based principally on reparation and ‘payback’ – in Scotland, arguing that 

these Scottish developments have much to say to the emerging debates in England and Wales 

(and elsewhere) about the ‘rehabilitation revolution’ and the proper use of imprisonment. The 

paper provides a critical account of the development and meaning of the Scottish version of 

‘payback’, linking it to some important philosophical and empirical studies that may help to 

steer the development of payback away from a ‘merely punitive’ drift. In the conclusion, I argue 

that probation agencies and services need to engage much more deeply and urgently with their 

roles as justice services, rather than as ‘mere’ crime reduction agencies.      

  

Introduction: Community Sanctions in Times of Insecurity 

 

The times in which we live are tough times for community sanctions2.  Historically, probation 

services in most jurisdictions have been preoccupied with the pursuit of rehabilitation – 

although the forms and functions of rehabilitation have changed in probation’s different eras 

and in the different places where it has developed (McNeill, Bracken and Clarke, 2010). One 

important and helpful analytical distinction that can be made about rehabilitation concerns 

whether it is considered as an end in itself or as a means to another end. The French expression 

‘rétablir dans ses droits’ captures well the notion of rehabilitation as moral purpose that we 

should pursue in its own right – that end being the full restoration to the formerly errant citizen 

of all of his rights (and responsibilities) (see Lewis, 2005). By contrast, contemporary 

penologists argue that in recent decades rehabilitation has been recast, particularly in the 

English-speaking world, not as an end but as a means or a mechanism for reducing crime (for 

example, see Garland, 2001). Such analyses tend to locate these developments within accounts 

of broader social changes associated with late or post-modernity.  As Zygmunt Bauman (1997) 

has famously observed, the fundamental discontents of post-modern societies rest in their 

sacrifice of collective securities for individual freedoms. For penologists, the argument usually 

runs along the line that as social life has become more atomised, more individualised, more 

preoccupied with uncertainties and risks – basically more insecure – people have become more 

eager to look after themselves and their own and less tolerant of anyone cast as an alien, an 

outsider, a threat.  

 

Within this context, it is no surprise that public protection has become a key priority and even a 

‘meta-narrative’ for probation in some jurisdictions (see, for example, Robinson and McNeill’s 

(2004) discussion of England and Wales and Scotland). Nonetheless, there are good reasons for 

                                                 
1
 This paper is a written version of a speech delivered at a conference in Belgium which celebrated 10 years of 

the Maisons de Justice. That speech drew heavily on two earlier papers published in the European Journal of 

Probation (McNeill, 2009a) and in the Irish Probation Journal (McNeill, 2009b) I am grateful to the editors of 

both journals for permission to re-use some of this material here. 
2
 The Council of Europe defines Community Sanctions and Measures (CSM) thus: ‘sanctions and measures 
which maintain the offender in the community and involve some restriction of his/her liberty through the 

imposition of conditions and/or obligations, and which are implemented by bodies designated in law for that 

purpose’. The term designates any sanction imposed by a court or a judge, and any measure taken before or 

instead of a decision on a sanction as well as ways of enforcing a sentence of imprisonment outside a prison 

establishment’ (Rec. (92)16 on the European Rules on Community Sanctions and Measures). When I refer to 

‘probation’ in this paper, I am referring not to the specific probation order but to CSM in general. 

 



having reservations about the term. To talk of protection seems to make sense in times of 

insecurity; perhaps probation’s political position and its claims on public resources can be best 

legitimated by promising to manage and reduce risks and thus to enhance security. Certainly at 

a time when offenders are increasingly vilified, this might seem a safer pitch for probation than 

its traditional sympathy for and commitment to the offender. However, there is a paradox at the 

heart of protection and there are risks with risk. Whenever the promise to protect is made, the 

existence of a threat is confirmed and fear is legitimised and reinforced (Douglas, 1992). 

Similarly, when probation commits itself to the assessment and management of risks, it exposes 

itself not to the likelihood of failure, but to its inevitability. Not all risks are predictable and not 

all harms are preventable. Even being excellent at assessing and managing risks most of the 

time -- assuming that this could be achieved -- would not protect probation from occasional, 

spectacular failures and the political costs that they carry (Robinson and McNeill, 2004).   

 

A further related problem with public protection is that it tends to dichotomise the interests of 

offenders and the interests of victims and communities in a zero-sum game (McCulloch and 

McNeill, 2007). It becomes not just a case of protecting ‘us’ from ‘them’, but a case of setting our 

safeties and liberties against theirs. For probation, this dichotomisation leads to a public and 

political pressure for more secure – for which we might read incapacitating – forms of control 

that serve, at least in the short term, to re-assure an anxious public. Probation’s traditional 

mechanisms for generating protection or security are to be found in the support of long-term 

change processes. But these rehabilitative processes provide relatively little security and little 

reassurance in the short-term. So although changed ex-offenders who have internalised and 

committed to the responsibilities of citizenship offer a better prospect for a safer society in the 

long term, change programmes and services look somewhat feeble when set against the 

increasingly threatening offender that communities are taught to fear.     

 

Leaving aside these political problems, there are other ethical and practical issues occasioned 

by the dominance of public protection. When probation accepts the lure of risk management 

and public protection, it preoccupies itself with things that may happen, with the offender's 

future behaviour, with potential victims and with the future impacts on communities of 

offending. There is a danger that the more that we preoccupy ourselves with these imaginaries, 

the less we concern ourselves with the real victims, real offenders and real communities that 

are with us now.   

 

Moreover, although clearly it can be argued that it is necessary for probation services to ask and 

answer the question of what works in reducing reoffending and protecting the public, it is not 

sufficient. Probation services are not merely crime reduction agencies; they are justice agencies. 

As Herbert Packer (1993) observed, the pursuit of crime control stands in tension with 

questions of justice, due process and legitimacy; the rush towards crime control can 

compromise the pursuit of justice – social as well as criminal – especially when intense political 

pressure is brought to bear on the system3.  In this respect it is important to recognise the vital 

role that probation services play not just in rehabilitation for crime reduction but in enabling 

constructive reparation by offenders – enabling them to pay back for their crimes.  At the same 

time, and with social justice in mind, probation services retain an important role in advocating 

for offenders so that they can access the social goods and resources which so often they have 

been denied. Of course, it is inequality and the social injustice that it represents that so often 

underlies not just crime and offending but a host of other social problems (Wilkinson, 2005; 

Wilkinson and Pickett, 2009).  

 

Against this backdrop, this paper aims to explore a central question for contemporary 

community sanctions agencies or probation services in any jurisdiction. In these tough times, is 

                                                 
3
 See, for example, Tony Blair’s (in)famous speech on ‘rebalancing the criminal justice system’, 23

rd
 June, 

2006: http://www.guardian.co.uk/politics/2006/jun/23/immigrationpolicy.ukcrime1 



the pursuit of effective crime reduction the only or best way to enhance the credibility of such 

agencies and services – or might it be better to prioritise the pursuit of a more constructive form 

of justice itself? 

 

Scottish Community Sanctions: Problems and possibilities? 

 

In trying to answer this question, it is instructive to reflect upon the Scottish experience of 

developing community sanctions – and to connect this experience to emerging debates in 

England and Wales about the ‘rehabilitation revolution’ and current debates there about the 

uses and abuses of short prison sentences. I have written elsewhere in some detail about the 

history of probation and criminal justice social work in Scotland (McNeill, 2005; McNeill and 

Whyte, 2007). In one sense, this is a story about the evolution of well-intentioned efforts to 

champion and to develop sensitive and credible alternatives to imprisonment. For example, one 

of Scotland’s earliest probation schemes began in Glasgow in 1905 because of a serious concern 

about the numbers of Glaswegians being imprisoned for fine default. As a history of probation’s 

first 50 years in Glasgow puts it, ‘in view of the admittedly demoralising influence of 

imprisonment, the serious consideration of all was demanded concerning the welfare of the 

community’ (City of Glasgow 1955: 9). 

 

What is interesting about this quote, perhaps in contrast with the discontents of post-modernity 

referred to above, is its explicit recognition of the fact that the adverse effects of imprisonment 

on those who suffered it (that is, its literally de-moralising effects) were seen as constituting a 

threat to the welfare of the whole community. In many respects the quote evidences Glasgow’s 

traditionally collectivist, corporate political and civic culture. To harm any part of the ‘body 

corporate’ was to harm the whole.  

 

Although Scottish probation subsequently moved through various reformulations, when at the 

end of the 1960s Scotland integrated probation within social work services and created its 

distinctive system of Children’s Hearings, these developments evidenced an enduring 

commitment to welfarism – to the recognition of the social context of crime problems and to the 

role of social educational approaches to resolving them (McNeill and Whyte, 2007). That said, 

an unintended consequence of the development of generic social work departments was the 

neglect of probation work, and decline in the use of probation reflected below in Figure 1: 

 

Figure 1: The use of community sanctions in Scotland, 1932-2006 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
0

1000

2000

3000

4000

5000

6000

7000

8000

9000

1932 1945 1951 1959 1971 1977 1985 1995 1999 2003 2005

Probation

Community service

950

juveniles

2,600

juveniles

Children's

Hearings

introduced

Impact of

National

Standards



 

 

To address this neglect and decline, and under political pressures generated by prison riots and 

suicides thought to be related to overcrowding,  the Scottish Office (then a department of the UK 

Government) in 1991 introduced ring-fenced funding and national standards for criminal 

justice social work services (SWSG, 1991). These mechanisms were aimed at enhancing the 

effectiveness, the credibility and the use of community sanctions in order to reduce the 

unnecessary use of custody. Figure 1 provides apparent evidence of the success of this initiative, 

showing a steep rise in the number of probation orders, as well as the successful introduction of 

community service. More recent figures suggest that around 20,000 community sanctions of 

various sorts were imposed in Scotland in 2008-094; that is about ten times as many community 

sanctions as were imposed in 1932. 

 

However, this ‘success’ is, in one very important sense, illusory – because Scotland’s prison 

population has continued to rise. It now stands at about 8,000 prisoners (over 150 per 

100,000), having been at less than 5,000 when the national standards were introduced in 1991 

(and less than 2,000 in the 1930s). The explanation for this apparent paradox is complex (see 

McAra, 2008; Scottish Prisons Commission, 2008), but it is clear that the increasing numbers of 

supervised community sanctions have displaced not prison sentences but financial penalties, 

thus contributing to a ‘dispersal of discipline’, increasing rather than reducing the carceral reach 

of the state (McNeill and Whyte, 2007).     

 

For the present purposes, perhaps the most important point to grasp is that Scottish community 

sanctions certainly became more credible, probably became more effective (see Paterson and 

Tombs, 1998), but manifestly failed to significantly impact on the use of imprisonment; indeed, 

since such sanctions often bring with them increased risks of default and potential net-widening 

effects, they may have contributed to the growth of imprisonment (see Scottish Prisons 

Commission, 2008). 

 

This continuing prison growth motivated the Cabinet Secretary for Justice in 2007 to appoint a 

Scottish Prisons Commission to examine the proper use of imprisonment in Scotland. The 

Commission was chaired by Henry McLeish, a former Minister for Home and Health in the 

Scottish Office (pre-devolution) and later a First Minister of Scotland. The Commission’s report, 

‘Scotland’s Choice’ (often referred to as the McLeish report), was published in July 2008. The 

key conclusion and central recommendations of the report are these:  

 

‘The evidence that we have reviewed leads us to the conclusion that to use 

imprisonment wisely is to target it where it can be most effective - in punishing serious 

crime and protecting the public.  

1. To better target imprisonment and make it more effective, the Commission 

recommends that imprisonment should be reserved for people whose offences 

are so serious that no other form of punishment will do and for those who pose a 

significant threat of serious harm to the public. 

2. To move beyond our reliance on imprisonment as a means of punishing 

offenders, the Commission recommends that paying back in the community 

should become the default position in dealing with less serious offenders’ (Scottish 

Prisons Commission, 2008: 3, emphasis added). 

 

The idea that a parsimonious approach to imprisonment in particular and punishment in 

general should prevail is not novel.  However, the Commission’s remedy for Scotland’s over-

consumption of imprisonment was innovative in some respects. Specifically, the Commission 

proposed a range of measures that it considered necessary to enact their second 

                                                 
4
 See http://openscotland.net/Publications/2008/12/09091001/2, accessed 25/02/2010. 



recommendation and make ‘paying back in the community’ the ‘default position’ for less serious 

offenders. Although Scotland’s penal history should lead us to question the extent to which the 

development of sentencing options changes sentencing practices, many of these measures speak 

directly to the nature, forms and functions of community sanctions – and particularly to their 

credibility. 

 

Leaving aside the Commission’s equally interesting and important recommendations around 

resettlement aside on this occasion, their report seeks to recast both court-based social work 

services and ‘front-door’ community sanctions around the concept of ‘payback’, which it defines 

as follows: 

 

‘In essence, payback means finding constructive ways to compensate or repair harms 

caused by crime. It involves making good to the victim and/or the community. This 

might be through financial payment, unpaid work, engaging in rehabilitative work or 

some combination of these and other approaches. Ultimately, one of the best ways for 

offenders to pay back is by turning their lives around’ (Scottish Prisons Commission, 

2008: 3.28, emphasis added).  

 

Several ways of paying back are identified here and elsewhere in the report – through 

restorative justice practices, through financial penalties, through unpaid work, through 

restriction of liberty (meaning in this context electronically monitored curfews) and, perhaps 

most interestingly in this context, through ‘paying back by working at change’. Working at 

change in turn is linked to engagement in a wide range of activities that might seem likely to 

address the issues underlying offending behaviour (drug and alcohol issues, money or housing 

problems, peer group and attitudinal issues, family difficulties, mental health problems and so 

on). The report also recognises the need for offenders to opt-in to rehabilitative modes of 

reparation; their consent is required for both practical and ethical reasons. 

 

In setting out a process for paying back, the Commission’s report suggests a three-stage 

approach to sentencing. In stage one, the judge makes a judgement about the level of penalty 

required by the offence with information from the prosecutor and the defence agent.  By 

implication, this is no business of social work, no business of probation; rather, it is a legal 

judgement about the appropriate level of penalty. But stage two considers what kind of payback, 

what form of reparation, is appropriate and this requires a dialogue not just between the judge 

and the court social worker, but one that actively engages the offender too. Most importantly for 

present purposes and with respect to both judicial and public credibility, stage three involves 

checking up on the progress of paying back; here, the report proposes the establishment of a 

particular kind of ‘progress court’ where judges who are specially trained to understand issues 

around compliance and around desistance from crime would have mechanisms at their disposal 

for handling setbacks and lapses without undue recourse to custody. This court would also have 

the power to reward compliance and positive progress through early discharge or the lightening 

of restrictions. Clearly this model owes much to the development of problem solving courts in 

many jurisdictions (see McIvor, 2009). 

 

Though the Scottish Government accepted most of the recommendations contained in 

‘Scotland’s Choice’, the subsequent legislative measure – the Criminal Justice and Licensing Act 

2010 – is much less radical than the Commission’s report. That said, it does include provisions 

to establish a presumption against short-term prison sentences (of less than 3 months), a 

Scottish Sentencing Council (to promote consistency, develop policy and improve public 

understanding of sentencing), and new Community Payback Orders (CPOs). These orders 

effectively replace a range of community sanctions (including probation and community 

service) with a single order, in respect of which judges can choose from a range of conditions 

relating to supervision, residence, compensation, programmes, unpaid work, drug treatment, 

alcohol treatment, mental health treatment and conduct. Though this menu is similar to that 



which applies to community orders and suspended sentence orders in England and Wales, 

perhaps the key difference rests in the title of the order. The Scottish Government seems to have 

signalled its acceptance of reparation or payback as the defining purpose of community 

sanctions and measures.  

 

Payback, Public Opinion and Credibility 

 

Returning to the question of credibility, around the time of the publication of ‘Scotland’s Choice’, 

the UK Government published a report on ‘Engaging Communities in Fighting Crime’, written by 

Louise Casey. Casey’s report sought solutions to perceived problems of public confidence in 

criminal justice in general and community sanctions in particular. The research evidence about 

public attitudes to punishment and to probation is, in some respects, complex (see Allen and 

Hough, 2007). First of all, there is no public opinion; there are different opinions from different 

members of the public; different opinions from the same people depending on what you ask 

them, how you ask them, what mood they are in and, probably, what has happened to them in 

the last 24 hours. Despite the broader context of insecurity alluded to above, there is evidence 

that it is something of a myth to suggest that ‘the public’ are universally punitive in response to 

offenders. Though most people tend to say that sentences are too lenient, if they are provided 

with case histories and then asked to suggest a sentence, they tend to sentence similarly to or 

more leniently than real judges.  

 

With regard to community sanctions, ignorance is a fundamental problem.  The most recent 

British Crime Survey (Jansson, 2008), for example, suggests that only 20 percent of people 

surveyed thought that probation in England and Wales was doing a good job. Allen and Hough 

(2007: 565) sum up the problem by quoting a focus group respondent who said simply: ‘I don't 

think probation means anything to many people’. This is a common finding in many 

jurisdictions; people don't really know what probation is, they don't know what it involves, they 

don't understand what it is trying to achieve. Given this, problems of credibility and public 

support seem inevitable. 

 

Casey’s solution was another re-branding of community service, this time as ‘community 

payback’. But Casey’s concept of payback is quite different from the Scottish Prisons 

Commission’s; it centres on making community service more visible and more demanding. She 

suggests that it should not be something the general public would chose to do themselves (in 

other words, it should be painful or punishing) and that offenders doing payback should wear 

bibs identifying them as such (in other words that it should be shaming). Contrast these 

suggestions with the following statements from the Scottish Prisons Commission’s report: 

 

‘…it is neither possible nor ethical to force people to change. But we are clear that if 

people refuse to pay back for their crimes, they must face the consequences’ (Scottish 

Prisons Commission, 2008: paragraph 3.31b) 

 

‘The public have a right to know – routinely – how much has been paid back and in what 

ways. This does not and should not mean stigmatising offenders as they go about paying 

back; to do so would be counter-productive. But it does and should mean that much 

greater effort goes into communication with the communities in which payback takes 

place’ (Scottish Prisons Commission, 2008: paragraph 3.31c) 

 

In a recent paper in this journal exploring the available research evidence about public attitudes 

to probation in the light of Casey’s recommendations, Maruna and King (2008: 347) come to the 

following conclusion: 

 

‘Casey is absolutely right to utilise emotive appeals to the public in order to increase 

public confidence in the criminal justice system. Justice is, at its heart, an emotional, 



symbolic process, not simply a matter of effectiveness and efficiency. However, if Casey’s 

purpose was to increase confidence in community interventions, then she drew on the 

exact wrong emotions. Desires for revenge and retribution, anger, bitterness and moral 

indignation are powerful emotive forces, but they do not raise confidence in probation 

work -- just the opposite. To do that, one would want to tap in to other, equally 

cherished, emotive values, such as the widely shared belief in redemption, the need for 

second chances, and beliefs that all people can change.’ 

 

It is particularly interesting in this context to note that those who might be expected to be most 

angry and even vengeful in their emotive responses to offenders – crime victims – often seem 

able to draw on some of these more positive and cherished values. The recently published 

evaluation of restorative justice schemes in England evidenced this very clearly, though the 

findings are consistent with many earlier studies of victims’ views and wishes:  

 

 ‘In approximately four-fifths of the conferences [n=346] that we observed, offenders’ 

problems and strategies to prevent reoffending were discussed, whilst discussion of 

financial or direct reparation to the victim was rare... This was not because victims or 

their wishes were ignored but rather because victims, in common with other participants, 

actively wished to focus on addressing the offenders’ problems and so minimizing the 

chance of reoffending. In pre-conference interviews... 72 per cent of victims said it was 

very or quite important to them to help the offender’ (Robinson and Shapland, 2008: 

341, emphasis added). 

 

So, while Casey-style payback (at least as she appears to have intended it, if not as some services 

have developed it in practice) may leave some of us with grave reservations, McLeish’s concept 

of ‘paying back by working at change’ seems to have strong resonance, not just with probation’s 

rehabilitative origins and affiliations, but with what many victims want from justice processes. 

So it may be that, from many victims’ perspectives, credibility is not a product of the ‘punitive 

bite’ of a sanction but rests instead on a process that invites and invokes constructive changes. 

With questions of wider public (and political credibility in mind), it is important to note here 

that, while this may sound ‘liberal’, in point of fact engaging in these kinds of efforts is 

something that offenders often find harder than undergoing ‘mere’ punishment (see May and 

Wood, 2010).  

 

But even if it does hurt, there is at least some empirical evidence that paying back (or making 

good) through working at change is something that many offenders want and need to do in and 

through the process of desistance.  No summary of this evidence can be offered here (see Farrall 

and Calverley, 2005; McNeill, 2009c; Maruna, 2001), but some of the implications for the 

delivery of community sanctions are emerging. 

 

Firstly, since desistance is an inherently individualised and subjective process, approaches to 

community sanctions must accommodate and exploit issues of identity and diversity. One-size-

fits-all interventions will not work. Secondly, the development and maintenance not just of 

motivation but also of hope become key tasks for probation workers. Thirdly, desistance can 

only be understood within the context of human relationships; not just relationships between 

workers and offenders (though these matter a great deal) but also between offenders and those 

who matter to them. Fourth, although practice tends to focus on offenders’ risk and needs, they 

also have strengths and resources that they can use to overcome obstacles to desistance – both 

personal strengths and resources and strengths and resources in their social networks. Practice 

should support and develop these capacities. Fifth, since desistance is about discovering agency, 

interventions need to encourage and respect self-determination; this means working with 

offenders not on them. Sixth, interventions based only on human capital – what a Dutch 

colleague recently described to me as ‘between the ears’ interventions – will not be enough. 



Probation needs to work on social capital issues with communities and offenders – it needs to 

work ‘beyond the ears’ if you will. 

 

Though they are derived from empirical evidence, in one way or another all of these 

prescriptions from desistance research involve treating people humanely and fairly; in other 

words, they point to the ethical dimensions of practice. More specifically, they connect to the 

moral legitimacy that might underpin efforts to influence another human being’s choices and 

behaviours. As I have argued elsewhere (McNeill, 2006), a case can certainly be made that 

desistance research makes a necessity out of certain practice virtues. To be effective in reducing 

crime it seems, the practitioner of community sanctions needs first to be just, since any 

perception of injustice, unfairness or illegitimacy will necessarily undermine the credibility of 

the ‘change agent’.    

 

Moving Forward: Alternatives to Punishment and/or Alternative Punishments? 

 

Questions of justice and punishment are linked, but historically, in many jurisdictions, probation 

and criminal justice social workers have tended to consider themselves as providers and 

advocates of (usually rehabilitative) alternatives to punishment, rather than as providers and 

advocates of alternative punishments. Though probation in England and Wales was compelled to 

face up to these issues more than a decade ago, in many jurisdictions it remains the case that for 

practitioners the notion of punishing, as opposed to supporting, supervising, treating or helping 

– or even challenging and confronting – seems inimical to the ethos, values and traditions of 

probation and social work. Certainly, that was once my view, but now I am not so sure. The 

penal philosopher Antony Duff (2001) has argued convincingly that we can and should 

distinguish between ‘constructive punishment’ and ‘merely punitive punishment’. Constructive 

punishment can and does involve the intentional infliction of pains but only in so far as this is an 

inevitable and intended consequence of ‘bringing offenders to face up to the effects and 

implications of their crimes, to rehabilitate them and to secure… reparation and reconciliation’ 

(Duff, 2003: 181). We both want and need people to feel the pains of remorse, since there is no 

such thing as painless remorse. This seems very close in some respects to the ideas of 

challenging and confronting offending which have become widely accepted in probation work in 

recent years, partly in response to political pressures to get tough but also, more positively, in 

response to the legitimate concerns of crime victims that their experiences should be taken 

more seriously. These ‘pains of remorse’ are not an accidental or consequential feature of 

challenging and changing behaviour; rather, they are constitutive of and central to the change 

process as a moral process (see also Bennett, 2008). 

 

But Duff’s work also helps us with a second problem, since he recognises, as I have already 

noted and as probation and social workers have understood for decades, that where social 

injustice is implicated in the genesis of offending, the infliction of punishment (even 

constructive punishment) by the state is rendered morally problematic, because the state is 

often itself complicit in criminogenesis (crime-generating) through having failed in its prior 

duties to the ‘offender’. For this reason, Duff suggests that probation officers or social workers 

should play a pivotal role in mediating between the offender and the wider polity, holding each 

one to account on behalf of the other. Again, this discomfiting space is one which many 

probation and social workers will recognise that they occupy and through which, with or 

without official or public support, they seek to promote social justice within criminal justice.  

 

It may be therefore that Duff’s work provides some of the conceptual resources with which to 

populate the concept of payback constructively. To the extent that the new centrality of 

reparation compels criminal justice social work to engage in punishing offenders, his notion of 

constructive punishment and his insistence on the links between social justice and criminal 

justice might help to buttress the Scottish social work version of payback from drifting in a 

‘merely punitive’ direction. There are other sources that probation services could also draw 



upon usefully here. Shadd Maruna’s (2001) ‘Making Good’ is one important desistance study 

that reveals the importance for ex-offenders of ‘making good’, and of having their efforts to do 

so recognised. In a sense, the relevance of the concept of ‘generativity’ – referring to the human 

need to make some positive contribution, often to the next generation – hints at the links 

between paying back and paying forward, in the sense of making something good (for others) 

out of one’s own damaged and damaging past  (see McNeill and Maruna, 2007). Bazemore’s 

(1998) work on ‘earned redemption’ examines more directly the tensions and synergies 

between reform and reparation, and the broader movements around ‘relational justice’ 

(Burnside and Baker, 1994/2004) and restorative justice (Johnstone and Van Ness, 2007) 

provide possible normative frameworks within which to further debate and develop these 

tensions and synergies.  

 

Clearly these questions would bear much closer examination that now seems necessary but is 

beyond the scope of this paper. But in terms of the practical applications for probation, these 

ideas and developments evoke Martin Davies’s (1981) notion of probation as a mediating 

institution. This can be understood in two ways. Firstly, probation mediates between the 

sometimes conflicting purposes of punishment – between retribution (but not of the merely 

punitive kind), reparation and rehabilitation. But equally probation mediates between the 

stakeholders in justice -- between courts, communities, victims and offenders, much in the 

manner that Duff (2003) suggests.  

 

Conclusions 

 

This paper began by noting that we live and work in times of insecurity. Perhaps insufficient 

time was spent building the argument that insecurity and punitiveness are closely related, but 

such an argument is probably not difficult to construct (see Bauman, 2000; Garland, 2001). 

Certainly it is clear that punitiveness squeezes the ‘space’ for community sanctions and 

measures in any justice system and strikes at the heart of their credibility. 

 

Arguably a key danger at this particular moment in the UK, with the combination of excitement 

and cynicism about the ‘rehabilitation revolution’ growing, is that a continued focus on reducing 

reoffending may lead to neglect of the recognition that justice systems are not only and perhaps 

not primarily concerned with reducing crime; to think that they are is to miss the point that 

crime reduction is but one amongst several purposes and functions that such systems serve (see 

Tonry, 2006).  It follows from this that the delivery of effective crime reduction (or of public 

protection) is not the only key to the credibility of community sanctions. Rather, we need to 

think much harder about the role of community sanctions agencies not narrowly as crime 

reduction agencies but more broadly as justice agencies. Though in this paper I have done no 

more than the raise some questions and interpret some historical lessons about the struggle for 

credibility, the plug for the late-modern credibility gap might be found in working harder to 

deliver and communicate sanctions that sentencers, offenders, victims and communities can 

understand as and feel to be constructive justice, rather than ‘mere’ crime control.  

 

Perhaps most practically, this invites probation agencies and practitioners to engage again with 

the legal, moral and psychological legitimacy of their relationships not just with offenders, but 

also with these other core constituencies (see McNeill and Robinson, forthcoming). The National 

Offender Management Service in England and Wales has wisely embarked on an ‘Offender 

Engagement Programme’; perhaps for NOMS and other probation agencies, similar initiatives 

are required for probation’s other ‘audiences’.    

 

References  

 

Allen, R. and Hough, M. (2007) ‘Community penalties, sentencers, the Media and Public Opinion’, 

in L. Gelsthorpe and R. Morgan (eds.) The Handbook of Probation. Cullompton: Willan. 



Bauman, Z. (1997) Postmodernity and Its Discontents. Cambridge: Polity Press. 

Bauman, Z. (2000) ‘Social Issues of Law and Order’, British Journal of Criminology 40(2): 205–21. 

Bazemore, G. (1998) ‘Restorative justice and earned redemption: communities, victims, and 

offender reintegration’ American Behavioral Scientist, 41(6): 768-813. 

Bennett, C. (2008) The Apology Ritual. Cambridge: Cambridge University Press. 

Burnside, J. and Baker, N. (eds.)(1994/2004) Relational Justice: Repairing the Breach. 

Winchester: Waterside Press.  

City of Glasgow (1955) Probation. A Brief Survey of Fifty Years of the Probation Service of the City 

of Glasgow 1905–1955. Glasgow: City of Glasgow Probation 

Davies, M. (1981) The Essential Social Worker. Aldershot: Ashgate. 

Douglas, M. (1992) Risk and Blame: Essays in Cultural Theory. London: Routledge. 

Duff, A. (2001) Punishment, Communication and Community. New York: Oxford University Press. 

Duff, A. (2003) ‘Probation, Punishment and Restorative Justice: Should Altruism Be Engaged in 

Punishment?’, The Howard Journal 42(1): 181–97. 

Farrall, S. and Calverley, A. (2005) Understanding Desistance from Crime. Maidenhead: Open 

University Press.  

Garland, D. (2001) The Culture of Control. Oxford: Oxford University Press. 

Johnstone, G. and Van Ness, D. (eds.)(2007) The Handbook of Restorative Justice. Cullompton: 

Willan.  

Jansson, K. (2008) British Crime Survey: Measuring Crime for 25 Years. London: Home Office.  

Lewis, S. (2005) ‘Rehabilitation: Headline or Footnote in the New Penal Policy’, Probation 

Journal 52(2): 119–35. 

McCulloch, P. and McNeill, F. (2007) ‘Consumer Society, Commodification and Offender 

Management’ Criminology and Criminal Justice, 7(3): 223-242 

McIvor, G. (2009) ‘Therapeutic jurisprudence and procedural justice in Scottish Drug Courts’ 

Criminology and Criminal Justice 9(1): 29-49. 

McAra, L. (2008) ‘Crime, Criminology and Criminal Justice in Scotland’ European Journal of 

Criminology 2008; 5(4) 481-504. 

McNeill, F. (2005) ‘Remembering probation in Scotland’ Probation Journal 52(1): 25-40. 

McNeill, F. (2006) ‘A desistance paradigm for offender management’ Criminology and 

 Criminal Justice 6(1): 39-62. 

McNeill, F. (2009a) ‘What Works and What’s Right’ European Journal of Probation 1(1):21-40. 

McNeill, F. (2009b) ‘Probation, Rehabilitation and Reparation’ Irish Probation Journal 6: 5-22.  

McNeill, F. (2009c) Towards Effective Practice in Offender Supervision. Glasgow: Scottish Centre 

for Crime and Justice Research, available at:  

http://www.sccjr.ac.uk/documents/McNeil_Towards.pdf 

McNeill, F., Bracken, D. and Clarke, A. (2010) ‘Social Work and Criminal Justice’ in I. Shaw, K. 

Briar-Lawson, J. Orme, and R. Ruckdeschel (eds.) The Sage Handbook of Social Work 

Research, London and New York: Sage. 

McNeill, F. and Maruna, S. (2007) ‘Giving Up and Giving Back: Desistance, Generativity and 

Social Work with Offenders’ in McIvor, G. and Raynor, P. (eds.) Developments in Social 

Work with Offenders. Research Highlights in Social Work 48. London: Jessica Kingsley. 

McNeill, F. and Robinson, G. (forthcoming) Liquid Legitimacy and Community Sanctions’, in 

Crawford, A. and Hucklesby, A. (eds.) Legitimacy and Compliance in Criminal Justice. 

Cullompton: Willan. 

McNeill, F. and Whyte, B. (2007) Reducing Reoffending: Social Work and Community Justice in 

Scotland. Cullompton: Willan. 

Maruna, S. (2001) Making Good. Washington, DC: American Psychological Association. 

Maruna, S. and King, A. (2008) ‘Selling the Public on Probation: Beyond the Bib’ Probation 

Journal 55(4): 337-351. 

May, D. and Wood, P. (2010) Ranking Correctional Punishments: Views from offenders, 

practitioners and the public. Durham, North Carolina, Carolina Academic Press. .  

Packer, H. (1993) The Limits of the Criminal Sanction. Sage: New York.  



Paterson, F. and Tombs, J. (1998) Social Work and Criminal Justice. Volume 1: The Impact of 

Policy. Edinburgh: The Stationery Office. 

Scottish Prisons Commission (2008) Scotland’s Choice. Edinburgh: Scottish Prisons Commission.  

Social Work Services Group (1991) National Objectives and Standards for Social 

 Work Services in the Criminal Justice System. Edinburgh: Scottish Office Social 

 Work Services Group. 

Robinson, G. and McNeill, F. (2004) ‘Purposes Matters: The Ends of Probation’, in G. Mair (ed.) 

What Matters in Probation Work. Cullompton: Willan 

Robinson, G. and Shapland, J. (2008) ‘Reducing Recidivism: A Task for Restorative Justice?’ 

British Journal of Criminology 48(3): 337-358. 

Tonry, M. (2006) ‘Purposes and Functions of Sentencing’ in Tonry, M. (ed.) Crime and Justice: A 

Review of Research, 34: 1-53. Chicago: University of Chicago Press.  

Wilkinson, R. (2005) The Impact of Inequality: How to Make Sick Societies Healthier. London: 

 Routledge. 

Wilkinson R. and Pickett, K. (2009) The Spirit Level: why more equal societies almost always 

 do better. London: Penguin - Allen Lane. 

 

 


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