Who Knows Best? A Question About How Criminal Policy Change Takes Place

Abstract

In defining the tasks of criminology, Sutherland pointed to an examination of ‘the processes of making laws, of breaking laws, and of reacting toward the breaking of laws’ (Sutherland et al., 1992, p. 3). This ‘still hard-to-beat definition of the field’ (Loader and Sparks, 2011, p. 13) shows that the question of crime, and the responses to it, also encompasses the issue of how policy and practice decisions about crime are made. The examination of the how question is significant, because the way that policy and practice decisions are made shapes the content of those decisions and, in turn, the scope and limits of criminal justice. The how question becomes particularly important when policy and legislative initiatives are of a strategic nature; namely, when they attempt to bring change or significant development in the operation and scope of criminal justice, in order to increase its efficiency, effectiveness and public legitimacy. Examination of the how question, therefore, is central to the study of the procedural legitimacy of strategic policy initiatives. The suspended sentence in English law is a simple but useful example. The Criminal Justice Act 1991, consistent with the government’s general policy objective at that time of securing proportionality and ‘desert’ in sentencing, restricted the power to pass a suspended sentence to ‘exceptional circumstances’ only.