La Reunión de Punta del Este

Cohen wrote in 1985, 'There have recently been some startling changes of tactics, alliances and battlefields, but the basic conflicts in the politics of crime control are still expressed in traditional terms, soft versus hard, liberal versus conservative, treatment versus punishment or more recently, 'doing good' versus 'doing justice'. (Cohen, 1985, p245).

The strategy of rehabilitation, that is fitting the treatment to the offender, reached its peak in the 'liberal age' of the nineteen sixties and then went into a rapid decline during the nineteen seventies. This decline was promoted by a whole range of disparate groups who were all critical of rehabilitation policies even if quite often for different reasons. But among these groups there was a growing consensus 'that the state's role in the punishment of offenders should be more concerned with doing justice rather than doing good' (Carien and Cook, 1989, p15). The critics from the right, the conservatives, felt that rehabilitation, with its emphasis on reform rather than punishment, simply let the offender off. They saw the rising crime rates and the potential collapse of law and order as tangible signs that the liberal soft options had failed. They called for a return to the justice model, to a system of just deserts where the emphasis was on 'deterrence, incapacitation and retribution', a situation which could best be achieved by inflicting harsher punishments on the offenders. Even the liberals, the proponents of the rehabilitation policies, were now having second thoughts. Not only were they beginning to question the state's right to impose 'treatment' on its citizens, they were also questioning a system which in practice appeared to punish offenders for who they were rather than for the crimes which they had committed. Those on the left also saw a system which, because of its individualised style of sentencing, discriminated against those groups who were already marginalised by being either socially or econmically disadvantaged. The sentencers themselves were also expressing concern. By dealing with those people with limited incomes and in recognising this, imposing fines at the lower end of the 'financial sentencing tariff, fines being the magistrates' most common form of punishment, they feared that they were unwittingly implying that poverty was a license to commit crimes. Lawyers were also critical of individualised sentencing, [as were many academics], because they saw it as a system which resulted in a lack of sentencing consistency which ultimately brought the courts into disrepute. The pragmatists attacked a system which they saw as ineffective, inefficient, subject to unnecessary delays, clogged up with minor offences, a system which demonstrated bureaucracy at its worst. As for the practitioners in the system, they were either prevented or incapable of using discretion in any way. These failings according to some critics had resulted

in justice and the very legitimacy of government itself becoming discredited. As far as these critics were concerned the solution lay in bifurcation, the soft cases which were responsible for jamming the system should be filtered away into forms of control outside of the main apparatus. Valuable resources could then be targeted 'on the real business of crime control' (Cohen, 1985, pp 128-140; Carien and Cook, 1989, pp13-15).

So by the time of the 1979 General Election, the scene was set for the return of a government who had set law and order high on its agenda, a government who had promised to be 'hard on crime'. This was an era which demanded a return to the justice model, an end to individualised sentencing and for constraints to be placed on local discretion. Politically there were no benefits to be gained by a government committed to the humanitarian aspects of punishment. Those who had mistrusted the state to administer rehabilitation policies were now placing total faith in the state to punish justly. But if people were looking for minimal state involvement and a policy which allowed the agencies within the system to implement and carry out the policies as they saw them, then they were to be disappointed. What the transition to the justice model actually did was to create a system where the whims of the administrators were exchanged ' for an enormously powerful, simple and centralised system of state control' (Christie,1981, p52; Cohen,1985, p137).

But of course it might be argued that all can be forgiven if the end justifies the means. But has it? According to Cohen, The whole onslaught on rehabilitation and its supposed replacement by the justice model has turned out to be a terrible mistake. .. In practice the justice model has turned out to be a masterpiece of unintended consequences. It has been totally coopted into right wing law and order politics and its visible success in changing the sentencing systems, (making them fixed, mandatory, flat, presumptive etc.), has only led to sentences which are longer, harsher and more unjust. In the process, prisons have become even more overcrowded and brutal than they were before ..' (Cohen 1985, p246). Cullen and Gilbert criticised the attack on discretionary decision making because, '..this was precisely the way in which citizens could be protected from the hard edge of the state. When discretion goes, so does fairness, compassion and individuation, and in its place comes an abstract machine­ like dispensation of fixed amounts of punishment' (Cullen and Gilbert, 1982 cited in Cohen 1985, p246).

As a sentencer of long standing, adjudicating on what is generally accepted as being a 'soft' Bench, a Bench which, when compared to many others, sends relatively few of its even more serious offenders to prison, and a Bench which makes a great deal of use of the community penalties which are available to it, and also as a student of the magistrates' courts for much of the first half of the nineteen nineties, I find very little in these statements by Cohen and Cullen and Gilbert with which to disagree, in fact I would suggest that they are even more pertinent today than they were when they were written a decade or more ago.

5.1.4 The dilemma of funding a punitive justice system while at the same time