ASBO Madness: A Modern Innovation or an Old Tradition?

Apologies for my lack of posting recently, end of year exams to mark and moderate leave little time for reflection and writing.  So time to get blogging again.  I have a number of news stories collected over the past month and as I am also about to refocus on my research - the history of punishment - I thought it was time that I shared some of this.  So today's post draws on current news story and my research!

Firstly another ASBO news story.  From the Plymouth Herald I came across this news story:

Alcohol and toilet ban for Asbo beggar 
A HOMELESS woman has been banned by a court from begging and using the streets of Plymouth as a toilet. City magistrates have imposed an anti-social behaviour order on 23-year-old Natasha Tisdall for the next two months. The nine-clause interim order bans Tisdall from knocking on doors or stopping people in the street to ask for money. She is also barred from defecating or urinating in public in Plymouth other than in toilets. Tisdall is also prohibited from carrying open cans of alcohol and is barred from the city centre, Barbican and North Hill areas. Breaking any one of the prohibitions could land Tisdall in jail for up to five years.

The ASBO is a civil order whose violation is a criminal offence imprisonable for up to five years. It is therefore possible to criminalise behaviour which is not in itself criminal and it allows for the fast tracking of individuals on (or outside) the fringes of criminality into prison. The obvious question has always been that if the person is breaking the law why not use the standard procedures?  The answer I fear is often that there is insufficient evidence or a desire to utilise a punishment, normally prison, that the crime could not justify.

In this case the target of this fast tracking into prison is someone who is homeless and the court recognised suffered from a number of serious health problems. ASBO are very often used in this way, targeting someone vulnerable with real social needs who for whatever reasons appropriate services have failed to deal with satisfactorily. The failure of well resourced agencies is blamed on the vulnerable client who is given an order everyone knows they cannot comply with and then when the inevitable happens it resolved by punishing the victim.  The Homeless are a particular target of the ASBO and we know that a homeless person is 1400% more likely to end up in prison than the average member of the population.

But this is not a new phenomena.  My own research into the history of punishment reminds me daily about how from the beginning of mass imprisonment early in the nineteenth century their target was not serious criminals but the homeless, young working class, immigrants, the mad and the unemployed. The were imprisoned not in a formal court with a jury and due process but by Magistrates often operating in the parlour of the local pub. The nineteenth-century Justice also had hybrid Civil/Criminal laws to help them in this. The most significant was Master & Servant Law, the predecessor of employment law.  Employment was a civil contract but enforceable in Magistrates' court and carrying penal consequences for employees who could be whipped and imprisoned. Employers could however only face civil penalties like being ordered to pay unpaid wages.  The Magistrates were all of the employing class and there were cases of Magistrates imprisoning and whipping there own employees.  No detailed records were kept of the Justices activities but it is clear that Master and Servant Law was one of two categories which dominated there work.  The other major source was Vagrancy Law. Designed to criminalise homelessness the poor unemployed arriving at a new town were effectively deemed criminal and systematically imprisoned and whipped.