The Various Criminal Justice System - Essay Example

November 2007 It’s not enough to condemn crime; we need to understand its causes Introduction The happenstance of a crime is an event that is seen with substantial amount of fictional and factual fascination and the legal process that is associated with the crime event is quite structured and which has stereotyped view of the crime, victims and criminal justice. In addition there is a very distinct social branding of the crime events in that they are associated with the phrase the ‘fear of crime’. In overall terms the crime associated society is seen from a social perspective that is attached an exclusion label to itself and one always avoids entering such a system even if it were as a witness and aid in the arrival of justice. This has worked to turn the legal system quite mechanical and the concept of crime that is seen with fear and disdain and not a social disease that has to be attacked from the roots. This paper examines the view that criminology should adopt a studious stance on the fact that the events of crime should not be considered as those that need just a structured meting out of justice to the perpetrator but that each crime event should be proactively viewed as an event that is caused by underlying social forces and equations that have given rise to root factors for its perpetration. Only when such a view is taken will the present criminal justice system emerge towards effective elimination or reduction of the crime from our society. Literature review based Discussions There has been tremendous interest of late into the political, social and commercial realities of the victims of crime. This is encompassed within a broad ranging view concerning the changing role of victims within the criminal justice process, their needs and rights, as well as victimological theories which help to explain and understand the process of victimization. In tandem to this there has been a parallel interest in the political, social and commercial realities of the perpetrators of the crime which lead to a set of factors that spurred the happening of the crime events. These augmenting factors if tackled and resolved effectively would help reduce crime. This, in fact is the preventive approach to crime. Different criminal justice systems the world over have different core orientations. For instance, the US criminal justice system views itself as following a “systems" approach to criminal justice, with improved coordination among law enforcement, courts, and correctional agencies.(Walker,1992) The 1967 Presidents Commission on Law Enforcement and Administration of Justice termed the criminal justice system as the means for society to "enforce the standards of conduct necessary to protect individuals and the community".(President’s,1967) The criminal justice system in the United Kingdom ,on the other hand, focuses on the post crime concepts of the quantum and justice meted out and the quality of such justice and has the objective of crime reduction “ by bringing more offences to justice, and to raise public confidence that the system is fair and will deliver for the law-abiding citizen.”(Criminal Justice) Whereas in the neighboring nation to the US i.e. Canada, the criminal justice system has been oriented and balanced to attain the goals of crime control and prevention, and dispensation of predefined justice (equity, fairness, protection of individual rights) (Schmolka) A British counterpart in Europe, i.e. in the Sweden, the focused goal for the criminal justice system is to reduce crime and increase the security of the people. (Criminal Justice) The aims of the Swedish criminal justice system seem to be more aligned to the theme of this paper than the other criminal justice systems cited. For instance the social status of women has a been a very popular argument in crime events involving rape. This is the orientation of the crime of rape in which there is a shift of focus towards the plight and role of victims and the implications of introducing a victim’s perspective into the delicate balance between state and offender for the future of criminal justice is being debated in order to seek reasons for the happening of the crime. This victim perspective is also helpful in understanding the criminal’s perspective as it gives out the enabling circumstances in which the offender was emboldened. As Hinchliffe (2000) states “Today, a key strand within feminist thinking is concerned with criticism of the liberal definition of equality, and a demand for the state (especially legal practice) to be reformed to reflect womens unequal social position. This approach is exemplified in Catharine MacKinnons Toward a Feminist Theory of the State, which argues that formal equality is a concept inapplicable to women and should be replaced by "substantive equality." She therefore argues that instead of being "gender-blind," the law should take womens social inequality into account. This demand for the law to base itself on an assumption of difference, rather than equality is summed up succinctly by British barrister Helena Kennedy: "It is no answer to make a simple call for equal treatment. Dealing equally with those who are unequal creates more inequality"”. The pre crime event analysis leads us to the study of the concept of ‘crime prevention’, its emphasis on environmental design and social forms, apart from its appeals to ‘community’ and ‘partnerships’ in the prevention process. This necessitates the examination of the role of, actual or potential, victims and offenders as targets of preventative intervention. Alongside the various methodological issues raise by the evaluation of crime prevention initiatives are also required to be taken in view. This specific view of crime prevention has received a lot f support in several literature studies. It has been approached from various angles. For instance , Faulkner(2004) states , “There has been a great deal of research into the causes of crime, patterns of offending, the circumstances of offenders, the effectiveness of various programmes in reducing re-offending, and the practice of the criminal justice services. There has been much less into the kind of activities and arrangements mentioned in this paper, into their effects on crime and disorder, or their possible contribution to the broader objectives of civil renewal and active citizenship. One of the lessons from existing research is that correlations are easy to identify but causal connections are harder to establish. Another is that direct causes and effects can rarely be claimed for any single factor or form of intervention. A third is that the results of criminological research are often counter-intuitive: for example there is no evidence that increasing the severity of sentencing has any deterrent effect, and those most at risk of becoming a victim of crime are also those most likely to commit it”. However before that Faulkner narrates the wide ranging prevailing confusion over the direction in which the British criminal justice system seems to be headed, Faulkner (2002) states, and “We seem to be moving in different directions on different subjects. For example, the police have over the last 10 or 20 years moved professionally from a fairly authoritarian towards a more liberal position, while the opposite has happened in the probation service. It is the authoritarian view which now seems politically to be in the ascendant in the United States and many European countries. On the criminal law itself, no-one knows how many criminal offences exist in England and Wales - perhaps about 8000 - and Parliament has been creating new offences at a rate of 100-150 a year”. Similarly drugs use related crimes events have gathered global attention from the angle of policy and law making and implementation. The socio-economic and geographic factors that underlie the constellation of factors that institutionalize the drugs markets and the offenders involved in such markets need to be probed in order to nail down the drug running activities effectively. Till the time such social, economic and geographic factors are addressed any attempt to bring drug law violation events and giving the fair justice or trial would be only scratching the surface. Literature has on record several government and non government sources on record which suggest such a correction in the systemic stance in the criminal justice system. For instance ,the report Making sense of Drugs and Crime - Drugs, Crime and Penal Policy gives out a comprehensive and facts based analysis of this kind of reorientation of the criminal justice system and examines the issues around the links between drugs and crime and appropriate policy responses. The chief merit of the report lies in the fact that it is very clear on conceptualizing the drugs and crime debate and weaving the criminal justice system within the broader canvas of the overall social context. This report explains as below, “ "Some system of drugs control and regulation is inevitable. The issue is where the main emphasis in policy should lie – whether in public health and social policy or in penal policy. From the accumulated evidence and experience, a broad, integrated social policy approach is required in order to reduce the levels and seriousness of drug and alcohol related crime – for drug users, victims of crimes and communities shattered by the impact of drugs. In that context, the criminal justice system can make an important, albeit limited, contribution. The primary aim of this report is to stimulate public debate about what that contribution could and should be." (Making, 2002, p.6) Another non governmental source is quite illustrative of reorienting the criminal justice system to the causes of the drug related crimes with a view to holistically treat the entire spectrum of matters from prohibition to the creation of crime, and the possibilities for significant reductions in crime at all levels through relevant law reform and regulated drug markets .This source was produced by Transform for a Turning Point conference on drugs and crime. This source states as follows, “ Historically, drug prohibitions have been terminated after causing more problems than the drugs themselves. The collision of drug prohibition and rising demand for drugs has led to the creation of illegal markets and crime on a massive scale. Drug prohibition turns otherwise law-abiding citizens into criminals and fuels crime at all levels. Attempts to enforce prohibition are expensive, ineffective and counterproductive, exacerbating problems they are intended to solve. Drug use and misuse should be treated, once more, as a health and social issue. A just and effective policy humane would repeal prohibition and replace it with a legal system of regulation and control.(Prohibition) As Hester & Eglin would say," As far as study of crime is concerned, the first premise entails the view that whether a given act is criminal or not depends upon the meanings which are attributed to it"(Hester & Eglin, Year). In current dispensations these meanings ca be mind boggling and can result in very harsh penal provisions. Increasing crime and harshness of the penal provisions, as was the case with the drug related crime events, have marked the British criminal justice system (Downes, 1988). as compared to some other European systems, for instance the Dutch, where an elite culture of tolerance helped reduce the harshness of penal provisions and helped focus on the offenders’ compulsions. (Nelken, 1995; Nelken, 1997). Similarly Reiner (2006) provides a compelling series of arguments that link economic and social factors such as the unemployment and, yet more strongly, inequality with the rates of crime and the particular political and economic arrangements which create circumstances for the crime events to occur. The liberalist rationalist perception has also put forward a clash of priority between the harsher penal provisions and inclusionary aspects of the criminal justice system. (Reiner, 2007; Young, 1999) The above clash brings forth the ability of the current criminal justice system in bringing about an examination of the underlying causes of the crimes when its focus of harsher penalties indicates quite otherwise. This has turned attention to other criminal justice systems that focus on more consultative solutions involving root causes of the crimes. UN has researched the issue of addressing the root causes of the crime at its specialized forums. One such source states as follows in respect of the restorative criminal justice system,” In many countries, dissatisfaction and frustration with the formal justice system or a resurging interest in preserving and strengthening customary law and traditional justice practices have led to calls for alternative responses to crime and social disorder. Many of these alternatives provide the parties involved, and often also the surrounding community, an opportunity to participate in resolving conflict and addressing its consequences. Restorative justice programmes are based on the belief that parties to a conflict ought to be actively involved in resolving it and mitigating its negative consequences”. (Handbook, 2006) The above source goes on to explain further the restorative criminal justice system in following words, “New and established forms of restorative justice offer communities some welcome means of resolving conflicts. They involve individuals who are not detached from the incident, but are directly involved in or affected by it. The participation of the community in the process is no longer abstract, but rather very direct and concrete. These processes are particularly adapted to situations where the parties participate voluntarily and each one has a capacity to engage fully and safely in a process of dialogue and negotiation. (Handbook, 2006) An examination of the following extract clearly proves the point that an essential element of the restorative criminal justice system would be to focus on the various factors and constellation of circumstances that had surrounded the offender and made him do the offence. The Handbook goes on to state as follows, “restorative criminal justice system Restorative justice is an approach to problem solving that, in its various forms, involves the victim, the offender, their social networks, justice agencies and the community. Restorative justice programmes are based on the fundamental principle that criminal behaviour not only violates the law, but also injures victims and the community. Any efforts to address the consequences of criminal behaviour should, where possible, involve the offender as well as these injured parties, while also providing help and support that the victim and offender require”. (Handbook, 2006) Faulkner, however, nails the issue more clearly when he examines he rights and responsibilities of the offenders as well as the victims in an argument which is essentially searching for the social causes that lead to the happening of the crime event with a view to either preempt the possible crime events or to set up a system that checks the futuristic happening of such crime events. As Faulkner (2004) says, “The idea that offenders are themselves citizens with their own rights and responsibilities has been less prominent. Interest groups have sought to assert prisoners’ rights, for example under the European Convention on Human Rights, but there has been little discussion of offenders’ responsibilities. There has been some limited interest in giving offenders the opportunity to “give something back” to the community in the form of community service; or through various schemes in prisons, one of which for example involves prisoners working as advisers with a local Citizens’ Advice Bureau. But community service, now simply called “unpaid work”, has never attracted much public or political enthusiasm, and schemes in prisons have always been vulnerable to operational and sometimes political constraints”. Faulkner (2004) states that, “Recent developments in criminal justice have mostly been towards greater centralisation rather than local discretion and accountability. They include for example the creation of the Crown Prosecution Service, the increasingly centralised administration of the magistrates’ courts, the formation of the National Probation Service, and the central direction of all services through the setting of priorities, targets and performance indicators. Crime and Disorder Reduction Partnerships provide an opportunity for local citizens to influence the decisions of the police and local authorities in relation to community safety, but the extent to which their voice is heard varies between different areas and local views may have to give way to nationally imposed priorities. Youth Offending Teams are organised locally, with an important contribution from local citizens through referral panels, but without any significant local responsibility or accountability. Proposals are however under discussion for greater local involvement in the police and the Crown Prosecution Service, and local citizens are to be co-opted to join the multi-agency public protection arrangements for sex offenders”. Conclusion The law gives structure to the society and bounds the individual within the society to acceptable and unacceptable activities. This distinction between an acceptable and unacceptable activity is such a critical function of the law in our society that our most activities are bound by such a distinction. In most countries the law derives from the constitution of the country and the law makers pass subsidiary and complementary legislations within the overall boundaries defined by the constitution of the country. Britain is no exception British constitution is unwritten but British law repertoire is rich with several debates and deliberations that have gone in formation of various laws and legislation. Moreover ,the British practice of law-as raised by plaintiffs and decided by courts- in relation various human activities in the society is so wide that interpretation of the law becomes a complex exercise while maintaining the objective of dispensation of fair justice. Thus the evolved law has tended to be bulky, nuanced and complex. While such a large body of law repertoire has its advantages in throwing out varied arguments; it also tends to make the process of the dispensation of the justice long drawn out and based on well researched law literature. This results often in a major preoccupation in the procedures related to dispensation of the justice, post crime event, rather than the root causes of the crime event and the conditions under which the offender committed the crime, on a pre crime event basis. The above discussions revealed that in many global jurisdictions moves have begun towards adopting restorative criminal justice systems which are authorized locally and which proactively look at the social and economic realities of the crime, offenders and victims and attempt to find a lasting solution to the crime rather than scratch the surface as is being done under the present dispensation. Work Cited Walker, Samuel (1992). Origins of the Contemporary Criminal Justice Paradigm: The American Bar Foundation Survey, 1953-1969. Justice Quarterly 9(1).  Presidents Commission on Law Enforcement and Administration of Justice (1967). The Challenge of Crime in a Free Society. U.S. Government Printing Office.  Criminal Justice - Aims and Objectives. Scottish Executive Consultations. Schmolka, Vicki. Principles to Guide Criminal Law Reform. Department of Justice, Government of Canada. Hinchliffe, Sara.(2000). Rape Law Reform in Britain. Society, May/Jun2000, Vol. 37 Issue 4, p57, 6p. Making sense of Drugs and Crime - Drugs, Crime and Penal Policy .(2002)- A Report of the Scottish Consortium on Crime and Criminal Justice . Prohibition and Crime. Retrieved on November 13, 2007 from the website of Transform Drug Policy Foundation, Easton Business Centre, Felix Rd., Bristol. Hestor,Stephen & Eglin,Peter._______A Sociology of Crime.___________. Downes David(1988). Contrasts in Tolerance. (Oxford University Press, 1988). Nelken David. (1995).Disclosing/Invoking Legal Culture. Social and Legal Studies 4 (1995): 435-52. Nelken, David. (1997). ed., Comparing Legal Cultures (Aldershot: Dartmouth). Reiner Robert.(2006).Beyond Risk: A Lament for Social Democratic Criminology. in Tim Newburn and Paul Rock, eds., The Politics of Crime Control (Oxford: Clarendon Press, 2006) Young, Jock.(1999). The Exclusive Society (London: Sage). Reiner Robert.(2007). Law and Order: An Honest Citizen’s Guide to Crime and Control (Oxford: Polity Press). Handbook On Restorative Justice Programmes.(2006).United Nations Office On Drugs And Crime. Faulkner David.(2004). Active Citizenship, Crime and Disorder: Seminar to Consider an Agenda for Research. Background, Scope and Possibilities. A background paper prepared for the Active Citizenship Centre’s seminar hosted by the Thames Valley Partnership on 16th June 2004. Faulkner David.(2002). Coping With Conflict. A Talk given to the Oxford Diocesan Convention on 12 July 2002. Read More