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Advancing emotionally intelligent justice within public life and popular culture
Abstract
Based on the understanding that traditional forms of justice are characterised by
‘affective authoritarianism’, Lawrence W Sherman (2003) has argued that a new system
of emotionally intelligent justice is needed to nurture the expression of positive,
beneficial emotions; and to control negative, detrimental ones. The policy approach
advocated to advance this progressive agenda of penal reform involves critical theory,
institutional innovation and empirical research focused primarily on the alternative
paradigm of restorative justice. Irrespective of the ‘truth’ or ‘fairness’ of emotionally
intelligent justice, this article argues that, because emotions are constructed through
socio-cultural circumstances and are integral to ethical judgements which legitimise
traditional forms of justice in contemporary public life, managing emotions in criminal
justice settings requires reform that is not only critical and experimental, but also public
and popular.
Key words
Punitiveness, emotions, psychology, morality, penal policy, public criminology
Re-thinking criminal justice
Garland (1990: 4) has written that “modern punishment… is a realm for the expression of
social value and emotion as well as a process for asserting control”. To what extent are
these justifications held in balance today? According to some commentators, the
principles and values on which punishment is founded have disintegrated over recent
years leaving control paramount. No longer concerned with restraint or moral efficacy, a
surge in punitive emotion has divided society along class and racial lines.
Disproportionately directed at poor and minority ethnic groups (Simon, 2001; Wacquant,
2009), public enthusiasm for harsher forms of punishment has increased in intensity and
volatility to become ‘vindictive’, ‘vituperative’, ‘hostile’ (Young, 2003). The result:
moral ambivalence about the right and wrong way to respond to criminals has been
distilled into ‘common sense’ penal policies enacted simply to pander to an increasingly
punitive mood (Bottoms, 1995). Since the beginning of the 1990s in the USA and UK
especially, a rapid escalation in mass imprisonment has been driven by a political culture
of ‘reckless excess’ (Loader, 2010: 350).
On a broader scale over the same period, there has been renewed interest in the role of
human feeling in public and political life. Somewhat paradoxically, a hallmark of the
criminological literature informed by this so called ‘affective turn’ in the social sciences
is that normative understandings of emotion as being incongruous to the proper and fair
administration of criminal justice have been questioned (Posner, 1999; Karstedt, 2002).
In that it has opened up a space for competing perspectives facilitating new
understandings of criminal behaviour and social censure the return of emotion to
academic criminological discourse is considered timely. It has flagged up the particularity
of debate which considers the motivations of offenders simply in terms of rational choice,
and following Hume (1969 [1769/70]) and Durkheim (1973 [1914]) reminded us that
emotions are intrinsic to moral reasoning and the symbolic character of punishment (De
Haan and Loader, 2002). The challenge is to render emotional responses to crime and
sensitivity to human relations compatible: to acknowledge the legitimacy of the punitive
passions while exercising control over them. Arguing that hostile and stigmatising forms
of punishment hinder the reintegration of offenders into the community and increase risks
of re-offending, Sherman (2003: 25-26) has proposed a new system of ‘emotionally
intelligent justice’ founded on legal procedures which respond to the ‘reasonable
emotional needs’ of “suspected, accused, and convicted offenders, as well as… victims,
their families and communities”. More precisely, the intention is to avoid emotions of
anger, humiliation, fear and disgust and engage emotions of remorse, guilt, shame,
empathy and hope (ibid: 11).
The concept of ‘emotional intelligence’ has a wide provenance. It emerged during the
1970s and 80s from psychometric research (see Salovey and Mayer, 1990) and has since
been applied to certain social systems, for example schools (Elias et al., 2001), the work
place (Caruso and Wolfe, 2001) and social work practice (Howe, 2008). Defined as the
ability to understand and manage emotional information and make better informed
judgements and decisions, emotional intelligence has also been linked to an array of non-
cognitive characteristics such as well-being, motivation and inter-personal relationships
in domestic and public life (Goleman, 1996).
Fusing the dichotomies of emotion and reason, feeling and the intellect is a long standing
philosophical problem. Inconsistency in the ways emotions are experienced and viewed
in personal, social and cultural life means the relationship between emotion and
intelligence has an uncertain epistemological status. In stating that “emotional
impulses… overwhelm rational cognition”, Sherman (2003: 6) locates the relationship
psychologically within the brain of the individual. Accordingly, mental training is
required to manage emotions, recognise emotions in victims and offenders, and reach a
better understanding of the criminal justice system’s emotions. Who is to receive this
training? Be it wholesale or piecemeal, the realignment of criminal justice systems is
dependent on the engagement of officials: judges, magistrates, the police, prison and
probation officers. Emotionally intelligent justice will emerge from “a cycle of theory,
innovations, and research” (ibid: 6) through which present ‘expressive’ (retributivist) and
‘economic’ (utilitarian) paradigms of justice will be transformed by state efforts “to make
its officials control their own emotions” (ibid: 8). Referring to comprehensive changes in
criminal justice brought about by a small group of intellectuals during the Enlightenment
through the evaluation of new institutional designs and the power of moral argument, an
explicit connection is made between the alternative paradigm of restorative justice and
the nurturing of constructive emotions and better human relationships between officials,
offenders and victims, and within the wider community.
Rather than impugning the conceptual validity of emotionally intelligent justice, its
general ‘goodness’ or ‘rightness’, this article subjects it to theoretical scrutiny. It also
highlights key difficulties the strategy proposed for its advancement must overcome. A
key area of concern is the proposal to isolate the solution to the problem of overly hostile
punishment within criminal justice settings. Such a view ignores the tendency for
punitive judgement to be shaped in the real world, within different cultural settings and
historical traditions according to the everyday needs, concerns and struggles of people.
Assuming it is possible to institutionalise emotion and manage it in situ, emotionally
intelligent justice ignores normative, structural constraints, cultural forces, and wider
social and political relations of power. Emotionally intelligent justice is grounded in both
moral emotion (emotions that respond to moral violations) and conscious and deliberative
reasoning. The article explores the strength of emotions linked to crime and justice: their
meaning, and the authenticity and legitimacy accorded to traditional forms of punishment
within everyday life. More than this, it argues that regulating emotions of sympathy,
empathy and compassion over anger, shame and disgust involves coming to terms with
issues of class, race, gender, sexuality and religion. It also entails reaching appropriate
and adequate responses to a range of pressing social problems: economic uncertainty,
social deprivation and mental depression for example. People generally must be
persuaded of the value of emotionally intelligent justice and the principle and practice of
restorative justice on which it is based. Advancing emotionally intelligent justice requires
us not only to change institutional views of crime and punishment but also how such
matters are represented socially and politically.
The permanence of moral emotion
A feature of the affective turn in the social sciences has been the exercise of rationality
combined with the expression of emotion in organisations. The institutional focus of
emotionally intelligent justice is in keeping with the notion of ‘emotional labour’
(Hochschild, 1983). An obvious difference however between the interplay of rationality
and emotion in standard areas of work and criminal justice settings is the nature of the
emotion experienced. Emotion in service occupations, for example, may be mandated and
managed in order to appeal to the customer. But emotion experienced and expressed in
criminal justice settings is not so easily standardised. The distinction is between emotions
which are essentially neutral and therefore subject to economic orientation and those
which, because they are deeply rooted in the moral concerns of people, are more resistant
to change. To understand emotional dynamics in criminal justice settings it is useful to
consider the power and permanence of basic emotions which have fundamentally moral
origins.
On the premise that a complexity of emotions overlap, merge and recur within everyday
life, it has been proposed that ‘basic’ or ‘primary’ emotions (Ekman, 1994) mix and
match to form different types or compounds (Plutschik, 2002). Two different schools of
thought contextualise this theoretical approach. Emotion is either shaped by changing
patterns of socialisation, social interaction and cultural lifestyle or, alternatively,
emotions are universal, somatic and discreet. Emotion is culturally constructed and hence
subject to conscious evaluation and revision (Soloman, 2007; Fridja, 1986) or it is
biologically primitive and evolves naturally as a basic means of survival (Lazarus, 1991;
Plutchik, 2002). Uniting these paradigms is central to understandings of moral
judgement, long considered to be either conscious and intentional or intuitive and
involuntary.
Moral reasoning and ethical judgement are contentious concepts involving abstract,
general and impersonal principles of fairness and justness (Turiel et al., 1987). As such,
the extent to which forces underlying punitive emotion are subject to historical and
geographical variation (Tonry and Frase, 2001) or constant and universal (Zimring et al.,
2001) remains open to dispute. On the one hand, moral judgement is politically
constituted by common knowledge and shared meaning, and centred on the fluctuating
interests of society as a whole (Hoggett and Thompson 2012). Changing definitions and
status accorded to deviant behaviours such as homosexuality and drug taking as well as
public and institutional variances in criminal justice response fixed in relation to them, is
evidence of the social construction and relativity of moral meaning (Musolf, 2003: 279).
On the other hand, moral judgement is not subject to re-evaluation, re-appraisal and reeducation. It arrives unconsciously, instantaneously and automatically (Haidt, 2001;
2003). Evidence for this is the inability of people to articulate a rational basis for the
moral convictions they hold. Hidden from conscious understanding, often people are
‘morally dumbfounded’ when asked to justify their most deeply held moral attitudes and
beliefs (Bjorklund et al., 2000).
On the basis that negative emotions degrade reasoning processes, emotionally intelligent
justice seeks to transform aggressive, stigmatising emotions such as anger and revenge
into supportive emotions such as empathy and sympathy for people who cause us harm
(Sherman and Strang, 2011). The problem to overcome is the centrality to human nature
of both positive and negative emotion. Actions which violate generally understood
principles of fairness and justice may be responded to with compassion and concern but
equally they are likely to elicit feelings of punitiveness and revenge. To investigate
whether such basic emotion is innate and ubiquitous across cultures, Ekman (1992) has
ordered emotion into ‘emotion families’, and Haidt (2003) has refined the typology
further by comparing families of negative, ‘condemning’ moral emotions (indignation,
disgust, anger and contempt) with positive, ‘suffering’ emotions (empathy and
compassion). Both suffering and condemning emotions shape social order. Being moved
to ‘do good’ for others from feelings of compassion and sympathy is an intuitive moral
sentiment (Hume, 1969 [1769/70]; Smith, 2010 [1790]) common to the animal world not
only humans (De Waal, 2009). But the action tendencies motivated by negative emotion:
“ostracism, shaming and murderous vengeance are no less a part of our moral nature”
(Haidt, 2003: 4). The exclusivity of positive and negative emotions cannot be assumed.
As Nussbaum (2001: 396-7) has written, “these dark forces cannot be cut off from the
rest of human life without impoverishing it… compassion and revenge do go hand in
hand”.
The relative strength of negative and positive emotion is the issue. History suggests
negative moral emotions are more powerful than positive ones. Envy, ressentiment
between the powerful and powerless, advantaged and disadvantaged is at base the
affective origin of moral judgement (Nietzsche, 1994 [1887]). And firmly held
authoritarian attitudes are “an expression of deep-lying trends in personality” (Adorno et
al., 1950: 1). The prolonged public criticism of sentencing for its perceived leniency over
any proper consideration of the justifications on which such decisions are made (Cullen
et al., 2000) indicates the persistence of collective rage and anger in human ethical
affairs. Similarly, the consistent line of association drawn between crime and marginal
populations which throughout history has resulted in the disproportionate imprisonment
of the poor and lower classes (Reiman, 2004) reveals an affective orientation towards
domination, prejudice and discrimination. Given the prominence of condemning lines of
force in moral affairs and social relations the challenge facing emotionally intelligent
justice is a considerable one. Negative emotions underpinning traditional forms of
punishment are more likely to define moral judgement than positive ones associated with
abstract categories of justice based on the resolution of conflict or the restoration of
community relations (Jasper, 1998: 414). As Sparks (2000) has observed, an intuitive
concern for the suffering of others is often the precursor to repressive forms of treatment
directed at those perceived to have caused it; a feature of public life exacerbated today by
‘mass media narratives of brutal victimisation’ (ibid, 2011: 319). In order to understand
more about the ways negative emotion might be managed in systems of emotionally
intelligent justice, it is necessary to understand the dynamics by which emotion and
intelligence are linked. The next section considers the other side of the equation:
intelligence, but not as counterbalance to punitive emotion, rather as reinforcement.
The automaticity of moral judgement
Emotionally intelligent justice focuses attention on emotion and also interior
psychological and mental states. Layder (2004: 12) has written that “the emotional or
feeling side of our nature goes hand in hand with our reflective, intelligent and
calculating side”. It is a two way process. Emotion activates belief and beliefs activate
emotion (Lazarus, 1991; Weiner, 1995; Scherer et al., 2000). Beliefs influenced by
emotion tend to be strong beliefs (Frijda and Mesquita, 2000). The automaticity of the
emotional response is rigid enough normally to cancel out key components of cognition:
reasoning, evaluation, and judgement. On the other hand, beliefs which precede and
guide emotional response are more likely to persist owing to the relative strength of the
values linked to them (Goldberg et al., 1999). These observations hold for both
individuals and groups. Eagly and Chaiken (1998) define values as attitudes expressed
towards abstract entities such as rules of conduct. As such, they have a moral and ethical
dimension which informs norms and expectations about how the social world should be.
The ability to control emotion with belief improves understanding of others and the
capacity to act wisely and responsibly in public life (Goleman, 1996). Ultimately,
emotionally intelligent justice will stand or fall depending on whether human beings are
conducive to value appeals which accord greater worth to positive emotions than negative
ones.
Social psychological analysis of the origins of group attitudes including attribution,
stereotyping and scapegoating provides pointers to how emotion and intelligence together
influences moral judgement and just as importantly why it does. A key area of
deliberation is the relationship between socio-cultural context and the subjective
experience of that context. Research has assessed the interior and private means by which
personal and social identities are shaped according to positions adopted in relation to
pressing social issues such as poverty, inequality, crime and punishment. Attention has
focused primarily on the mental processes by which groups form and change attitudes
and construct stereotypes including how strongly they are adhered to and the ‘truth’,
‘commonality’ or ‘universality’ of the individual and shared beliefs and judgements
which underpin them. This work suggests that stereotypes serve to simplify complex
social phenomena and maintain and distinguish collective values and ideologies (Tajfel,
1981). In assigning causes to effects, ‘attribution’ or ‘motive imputation’ renders the
social world predictable. Because time and information is limited and we often lack the
motivation to reach considered positions on complex social problems, there is an
inclination to rely on individual experience and emotional cues (Aronson, 1991).
Attitudes formed and received heuristically without systematic or evaluative effort
(Bohner et al., 1995) engender readymade, partial and arbitrary understandings of the
world. Group attitudes are also limited by age, gender, social class, geographical location
and religion. Nevertheless, they enable information to be processed quickly,
automatically, comfortably and with a degree of conviction and certitude (Katz, 1960).
Moreover, they retain a force of reason by dint of being assumptions and inferences about
what makes sense in the world that are immediate and personal to us.
Social psychological perspectives suggest there is a utility to the mental processes
underpinning moral judgement. Beliefs about crime, punishment and rules of conduct are
implicit, deliberate and automatic. Punitiveness stems from a connection purposefully
made between personal experience and inter-group comparison. In that they facilitate the
expression of individual and group values (Katz, 1960) punitive attitudes are useful and
advantageous. For instance, people demonstrate a propensity to make ‘correspondence
biases’ (Gilbert, 1995) privileging dispositional causes to the behaviour of others over
circumstantial factors, but reverse the process when assessing their own behaviour. Anger
is elicited and punishment demanded especially when people infer that criminal actions
are associated with internal, stable and controllable causes (Lerner et al., 1998). Psychoanalytical research provides two basic reasons for this. First, people assume a sense of
superiority over those whose actions they link to personal traits (Miller et al., 1978) and
second, individual or group behaviour is typically more distinctive than the situation or
context in which it occurs (Rholes and Pryor, 1982).
This is not the whole story of course. It would be terse and simplistic to suggest cognitive
predispositions emphasising the inadequacy of others alone determine moral judgements.
Unless an individual is psychopathic, moral compunctions are never summarily
dismissed by mental processes for which individuals hold no responsibility. Although
variable and inconsistent, a degree of emotional intelligence is always present in
perceptions of value, ethical reasoning and the moral judgements we hold towards others
(Nussbaum, 2001) Still, the components of emotional intelligence are highly complex
and duo direct. Wider social, economic and cultural transformations (structure) interact
with individual attitudes and our relationships and dealings with others (agency). For
emotionally intelligent justice to advance therefore understanding is required of the
human propensity to stigmatise social groups on the basis of deficiency and demand
increasingly punitive sanctions are deployed against them. It must confront the tendency
of people to ascribe character traits of dependency, fecklessness and hedonism to
economically marginalised groups and ignore or discount structural factors such as
poverty and unemployment. Before addressing the question of how emotional intelligent
justice might counter punitive emotions and attitudes, it is necessary to review the
contemporary social and cultural contexts in which inter-group prejudice forms and
moral judgements are located.
The ‘affective state’ of public punitiveness
Emotionally intelligent justice has been hailed as a compelling and persuasive response to
what is generally considered an increasingly emotionalised and punitive public discourse
on crime and justice (Karstedt, 2011). What is the correct way to read the ‘punitive turn’
thought to have taken place in contemporary public life? It is common to point up the
expressive function that punitive public attitudes serve within advanced capitalist society
(Tyler and Boeckmann, 1997). Ignoring the doxa that links punitiveness to a rise in rates
of crime or victimisation, ‘popular punitiveness’ is understood in relation to changes in
the structure of society as a whole: its social relations, culture and institutions. Grounded
in broad sociological analyses of globalisation (Giddens, 1991) and ‘risk’ (Beck, 1992),
punitiveness is considered a response to a ubiquitous new ‘state of being’ made manifest
in various forms and contexts. These include the following: ‘social anxiety’, driven by a
distancing of social relations and a weakening of functional dependencies (Garland,
2001); ‘economic uncertainty’, a consequence of market deregulation and lack of job
security (Bauman, 2000); and ‘fears over personal and public safety’, generated by
interventionist government agendas which prioritise strict law and order policies (Simon,
2007), complemented by a mass mediated narrative which exaggerates the incidence of
crime and risk of victimisation (Jewkes, 2011). The result is ‘ontological insecurity’, a
somewhat abstract concept of the self denoting a mass crisis of personal and social
identity. First coined by Laing (1973) to explain serious mental disorders such as
schizophrenia and psychosis, ontological insecurity has since been re-defined to include
both individual and collective experience (Giddens, 1991). Crisis of identity is believed
to be endemic. Psychological tension and emotional, moral disquiet are disabling and
enduring (ibid: 184/5). Popular punitiveness stems from inter-group conflict and
defensive aggression relied upon to assuage feelings of anxiety, uncertainty and
frustration. Through the hardening of social identities and the shoring up of group
affiliations, most readily achieved by ‘scapegoating’ and ‘negative stereotyping’, “the
core, unchanging nature of oneself and others” is reasserted (Young, 2003: 389). Instead
of directing anger and aggression at the real source of the problem – global capitalism,
joblessness, the loss of communal solidarity – it is displaced onto marginalised and
excluded groups prejudiced for threatening the social and economic order (Young, 1999;
Garland, 2001; Wacquant, 2009).
In key respects this socio-cultural constructionist schema resonates with the moral
emotional and social psychological perspectives considered in the previous sections. The
important difference being that popular punitiveness is not an interior phenomenon.
Rather than being deeply felt or automatically received, it is subject to external economic
forces and shifts in cultural symbols and ideals. All told, “meanings within and without
the penal system influence the quantity and quality of punishment” (Smith, 2008: 6). As a
social construction, popular punitiveness is unstable, unpredictable, ill-defined and
amenable to change. Intense and powerful as they might be, popular punitive emotions
are alternating and not uniformly coercive across society as a whole. Immediately, this
presents an opportunity for emotionally intelligent justice to advance. Punitiveness is
incoherent and the public is not nearly as demanding of punishment as is sometimes
assumed (Roberts and Hough, 2002). Indeed, it is open to persuasion. Punitive emotion is
ambivalent and the social order of punishment it serves to reproduce can be altered. To
assess the validity of this perspective it is worth considering the forms and types of
punitive emotion in public life a little further.
A rich tradition of philosophical, social and cultural theory has demonstrated the
centrality of emotion to social life, in particular collective feelings of ‘estrangement’,
‘anxiety’, ‘separation’ and ‘isolation’ engendered by materialistic conditions of
capitalism. Although very different in conception and epistemological span, ‘dread’
(Kierkegaard, (1957 [1844]), ‘alienation’ (Marx, 1956 [1844]), ‘anomie’ (Durkheim,
1951 [1897]), a ‘blasé’ attitude (Simmel, 1971 [1903]), ‘destructiveness’ (Fromm, 1984
[1942]), ‘one-dimensionality’ (Marcuse, 2002 [1964]), ‘boredom’ (Lefebvre, 1995
[1962]) and ‘depthlessness’ (Jameson, 1991) are all terms intended to encapsulate the
unsettling effects of (post)modernity on psycho-emotional life. From this classic tradition
of philosophical and social scientific analysis, contemporary emotion research has drawn
a distinction between individual or ‘reactive’ emotions and group emotions or ‘affective
states’ (Jasper, 1998; Kemper, 2002). Whereas reactive emotion is temporary and
consciously directed towards an external object or event, an affective state is widespread
and indeterminate thereby making it difficult to establish structural regularity to the
emotional activity it comprises. The direction in which collective emotion suffuses social
relations and elicits collective responses is always prone to fluctuation and change
(Scherer et al., 2004).
Popular punitiveness is understood to be a product of social and economic
transformation. As such, it may be considered an affective state beset by social, cultural
and historical imprecision. The epistemological uncertainty raises a number of questions
about the prevalence of punitive emotion within contemporary society. Is ontological
insecurity a conceivable, coherent state of being? If so, over what time frame did it
manifest itself as such? Has there ever been a time when society was ontologically
secure? Is ontological security even possible? How is punitiveness generated as a shared,
collective behaviour? For example, is it contagious, ‘electrically’ transmitted as
‘collective effervescence’ (Durkheim, 1995 [1912])? Is it mutually reinforced through
inter-comparison, ‘mind reading’ and ‘perspective taking’ (Goldman, 1993)? Or is it
diffused impulsively in crowd situations (Diener, 1980)? There are a myriad explanations
and a morass of doubt.
Criminology has long wrestled with questions of how individuals do, or do not conform,
to social types (see Gadd and Jefferson, 2007). Societal reaction is never homogenous
and emotional responses fluctuate and change (Kemper, 2002). Emotions linked to moral
judgements and punishment contend for dominance, vary in intensity and may be actively
resisted according to social and demographic variables of class, age, race, or local context
(Jasper, 1998). Difficult to track and pin down, ‘anxiety’ and ‘fear’ are especially
disparate emotions. Anxiety may be repressed, reduced and rise and fall as “its object
constantly shifts from one thing to another, almost as if the object is secondary to the
feeling” (Hoggett and Thompson, 2012: 3). It may be expressed as contempt and
aggressiveness towards particular social groups and punitiveness may be resorted to as a
key coping response. But equally, anxiety may instil world weariness, compliance, even
paralysis. Moreover, feelings of anxiety and insecurity overlap and vary in frequency
and intensity (Gray et al., 2008). Fear, for example, is commonly confused with ‘worry’,
‘insecurity’, ‘anxiety’ and ‘unease’ (Hale, 1996: 84). An understandable response to
uncertainty and risk, it is commonly assumed that fear of crime has risen in contemporary
life and this, in turn, has increased public demands for more severe punishments. Yet
research shows the opposite to be true. Fear of crime is infrequent (Farrall and Gadd,
2004), and “serious fear situations are few and far between in the normal course of
events” (Scherer et al., 2004: 520).
Research on everyday emotions linked to crime suggests the public is not necessarily
excessively punitive and may be willing to contemplate other forms of justice including
restorative justice. Emotions such as anxiety and fear exhibit varying degrees of
prominence and reflexivity within contemporary society. They also provoke different
reactions. While they are likely to increase demands for exclusionary mechanisms of
control to be used against stereotyped groups, they might also underpin appeals for peace,
restoration and rehabilitation. A major complication however is that the complex psychosocial dynamics of everyday emotional existence make it difficult to gauge public
responses to crime and punishment. The range of emotions linked to punitiveness is not
as simply categorised as the literature on emotionally intelligent justice suggests. For
change to occur a different set of cultural symbols and ideas linked to punishment needs
to take root. This is liable to occur unintentionally. As Smith (2008: 1) has argued,
punishment is “always the locus of intense narrative activity and contestation within a
wider civil discourse”. Another complication is that public interest in punishment is not
only stirred by cultural change, it is also subject to control. Governments, the media and
other moral entrepreneurs seek to manipulate punitive emotions in order to secure their
interests and reproduce the social order (Nussbaum, 1996). Rather than attempt to
manage emotion through mechanisms of penal moderation and restorative dialogue, the
state is more inclined to direct it in ways which supports the status quo. Thus, everyday
meanings and values linked to crime and justice are reaffirmed to shore up traditional
criminal justice practices. The influence on criminal justice systems of wider power
relations has been acknowledged by advocates of emotionally intelligent justice. But it is
one thing to argue that “we live in a world where if justice is to be an accomplishment of
our civilization, it will be more an accomplishment of civil society than the state”
(Braithwaite (2006: 407). The question remains how this will be accomplished in
practice.
The advancement of emotionally intelligent justice: policy making implications
Sherman (2003) proposes that advocates of emotionally intelligent justice - penal
reformers and academic criminologists - should aim to nurture the insights and
capabilities of leaders and officials who deliver justice on behalf of the state. In the
pejorative sense of the word, this is elitist. As Loader (2006: 582) has argued, “the idea
that crime should be kept out of public life, safely handled by a coterie of experts, was
and remains profoundly anti-democratic”. After all, it is in the public interest that
punishment, in whatever form it takes, is inflicted. Moreover, it suggests a subset of
highly professional people can be trained to demonstrate emotional intelligence regarding
crime and punishment above and beyond the means of ordinary people. The strategy begs
a number of rhetorical questions. What qualities are required for the role? Does the
capacity to manage negative emotions and communicate positive ones differ according to
gender, class or race? Are there particular life experiences and motivations which might
help criminal justice officials better understand the social circumstances of people
brought before them in courts of law? Or are there presently economic, social, and
cultural characteristics common to the hierarchical status of criminal justice officials
which separate them off from the everyday concerns of ordinary people? Studies in the
UK reveal in fact that the present incumbents embody a predominant and to a significant
extent sovereign habitus (Bourdieu, 1990). Far from representative of the communities
they serve, magistrates are mostly middle class, conservative and white, while judges are
mostly middle to upper-class, privately educated, male and white (Cavadino et al., 2013:
88-89). Moreover, both are prone to disdain initiatives which seek to limit their judicial
discretion including, no doubt, training in emotional competency. Magistrates and judges
receive little training and are generally dismissive of it. Therefore, judicial decision
making is rendered “impervious to criticism from outside and highly resistant to attempts
at external control” (ibid: 88).
Criminal justice systems and the law and order ideologies on which they are founded are
not isolated worlds of their own. They are a product of institutional (MacCormick, 2007),
economic (Lacey, 2008) and cultural forces (Smith, 2008). Crime and punishment is
responded to instinctively, including by criminal justice officials, through everyday
experience. As a matter of course, harms, pains and conflicts caused by crime are
internalised incidentally through ‘social learning’ (Vygotsky, 1978). Attempts to advance
emotionally intelligent justice must address the implications of this. As Nussbaum (2001:
402) has argued, the embodiment within institutions of any political conception of value
and ethical reasoning “needs to concern itself with citizens’ motivations, both in order to
be feasible in the first place – does not impose impossible strains on human psychology –
and also in order to ensure that it has a decent chance of being stable over time”.
Arguments in favour of emotionally intelligent justice remain at the margins of political
policy making. Articulating and promoting the value of emotion management in criminal
justice settings and more broadly in public life is a difficult proposition, particularly for
academic criminology, a discipline founded on rationality, empiricism and reason
(Karstedt, 2011). A method proposed is to demonstrate the value of restorative justice
through direct engagement and participant observation. Durkheim (1984 [1893])
famously argued it is only through direct exposure to the rituals of punishment that the
value of wider human affairs - morality, reason, social order, civilisation, justice and
fairness - may be understood. At a discrete case level, the usefulness of witnessing in
person the outcomes of punishment is supported by academic research. Being held
accountable and asked to justify punitive responses encourages people to become
“flexible, balanced thinkers”, thereby activating “more complex and systematic forms of
information processing” (Lerner et al., 1998: 564). When asked to judge the merits of
individual cases, particularly in relation to whether justice has been served or not, people
are prepared to consider issues of intentionality and mitigation, and as a consequence
temper emotional outrage and attributions of blame (Goldberg et al., 1999). Furthermore,
although research on the effectiveness of restorative justice initiatives is conflicting (see
Levrant et al., 1999; Braithwaite, 1999), some evaluations of mediation settings have
found that victims of crime are more inclined to express suffering emotions of
compassion and forgiveness when offenders express remorse and apologise for the harm
caused to them (Strang, 2002).
These results are encouraging. They demonstrate participants and observers in restorative
justice settings are prepared to make emotional and cognitive shifts in moral judgement
which do privilege the expression of positive over negative emotions. Yet they are
incomplete. Not only are such experimental exercises few in number, they are conducted
in specially convened settings in which people are observed acting differently to the way
they would in ‘real life’. As argued throughout this article, within civil society generally,
emotional ‘moods’ or affective states provide experiences and information for moral
judgements which entail no such conscious evaluation or reasoning (Schwarz and Clore,
1983). Distanced from the rituals of punishment, the pain and suffering caused to
offenders is all too easily neutralised, automatically reduced to retributivist retaliation
and/or a simple utilitarian calculus based on deterrence and notions of the greater good.
To advance, emotionally intelligent justice needs to move beyond the parameters of
experimental research into society as a whole. As others have argued, more and more
public moods are integral to public narrative and political discourse (Jasper, 1998;
Hoggett and Thompson, 2012). In matters of criminal justice, pluralist public perceptions
and preferences must be attended to (Ryan, 2003; Loader, 2006). Abstract
reconsiderations of justice based on reconciliation and restoration are impacted upon by
institutional and administrative structures which serve the interests of a range of opinion
formers: politicians, lobbyists, pressure groups and the media (Garland and Sparks,
2000). Such interests are likely to have deep moral emotional roots that remain resistant
to policy prescriptions based on the findings of criminological research (Tittle, 2004).
More than this, even if public officials are persuaded as to the merits of restorative justice
practices, the state “is no longer pre-eminent in public policy” (Osborne, 2010: 6). Public
opinion is an important barometer of the prospects for political and social reform, and
political frameworks reproduce themselves through the deliberate manufacture of public
consent (Kingdon, 1995). Either way, political change plays out today in an irrational,
intimate, even fantastical public context (Duncombe, 2007). Social scientific research has
been downgraded. Expert knowledge is considered suspect. Enlightenment era faith in
research and the power of moral argument has disappeared. It is no longer sufficient to
focus attention on the principles and practice of criminal justice institutions. If
emotionally intelligent justice is to advance it must do so in a policy environment
characterised by multiple and overlapping political, public and personal spheres of
existence (Smith, 2001).
Despite repeated affirmation of “the value and role of a public philosophy of
punishment” (Loader, 2010: 349, emphasis in the original), the mechanisms by which
emotionally intelligent justice might be communicated to a public audience are poorly
understood. Based on the assumption that understandings of crime and punishment are
limited and taken for granted in public life, one strategy has been to identify gaps and
distortions in public knowledge and make good the deficit through the provision of clear,
reliable and independent information (Roberts and Hough, 2002; 2005). The problem
with this is that it does not address the affective dimensions of public attitudes. Given that
emotion and low effort mental processes together shape punitive moral judgements, what
people are prepared to accept as true about crime and punishment is likely to carry more
weight than the messy complicated truth itself. Information, if it is to be absorbed at all in
a world increasingly overloaded with information, must be kept simple and direct
(Castells, 2004). The low level and sporadic forms of public engagement trialled to date –
focus groups, deliberative polls etc. (Roberts and Hough, 2002) - while they aim to
explore the assumptions, judgements and attitudes which lie behind public punitiveness,
are not designed to bring about the long term educational effects predicted to flow from
them.
Establishing an alternative paradigm of emotionally intelligent justice requires systems of
communication and public engagement which acknowledge and are capable of
challenging the gamut of cognitions, attitudes, values, beliefs, feelings and moral
emotions which together underpin and legitimise traditional forms of punishment.
Methods of communication must be developed which resonate with the symbols and
ideals ordinary people find meaningful. The task of emotionally intelligent justice is to
affirm new values of forgiveness reconciliation and recompense. To achieve this, nothing
less than a complete reconfiguration of emotional and intelligent life is required.
Acknowledging the immensity of the task, Nussbaum (2001) has called for public
education to focus on the humanities and liberal arts. Rather than attend solely to
institutional and professional matters, “to cultivate the ability to imagine the experiences
of others and to participate in their suffering” (ibid: 426), it is necessary to enter into their
lives and witness “the various kinds of unequal treatment that certain people and groups
have experienced” (ibid: 442). Moral development occurs when complex social
phenomena and counter-information is accepted and people are motivated to focus on
disagreements and share ideas (Piaget, 1965 [1932]; Kohlberg, 1981). Extending this
principle to the public sphere is central to notions of public education based on the value
of meaning, social debate and perspective taking (Dewey, 1938). An important
difference however between academic and public education is that, given the overall
intention is to learn, students are more likely to suspend attitude functions and temper the
free expression of feelings. In comparison, the willingness of the general public,
including criminal justice officials, to critically reflect on accepted moral norms, embrace
diversity, tolerate difference, appreciate ambiguity and ultimately engage in a programme
of cognitive re-evaluation and emotional self-control is open to considerable doubt.
Nevertheless, such is the challenge that efforts to advance emotionally intelligent justice
in public life and popular culture must contend with.
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The research received no specific grant from any funding agency in the public,
commercial or not-for-profit sectors.