1 Flashcards
Actors of the Criminal Justice System
- Judges
- Jury
- Legislators
- Offenders
- Police
- Prosecution
- Victims
- Witness
INTERDEPENDENT System rather than a PROCESS
Is criminal justice a “system”?
Criminal justice represents a wide range of (institutions, actors and practices), each has (objectives and values) and (and interactions) does that make it a coherent or interdependent actors who don't work systematically together
Is it good if it is a coherent system (if everything works together, closely, is it efficient) or our interdependent system
More accurate to talk about a criminal justice “process” since it is interdependent, term of system isn’t always straightforward
Definition of Criminal Justice
The formal response of the state to wrong doing”, legal institution, deals with people suspected of crime, convicting the guilty and exonerating the innocent, achieved by means of due process, fairness and equality before the law
crime control + deterrence
Ways of thinking of Criminal Justice
governance (Zedner 2004), a way of resolving disputes, managing risks, and protecting the public
Way of regulating social world- definitions of crimes and states- psychological etc
social institution (Garland 1990) its a way of a society regulating social order- regulates, governs and controls social order-serves a social function
it is a political system -criminal justice has become more politicised, especially since 1970s
- political parties campaign on law and order
- political suicide to be seen as soft on crime
Concept of discretion in practice
Attrition
ways cases are selected in and out of criminal justice system
Out of all offenses in one year in uk, 2% end up in formal court proceedings
Prosecution in Scotland
Crown office and the procurator fiscal
Procurator Fiscal
Crown office and the procurator fiscal
Prosecution in Scotland
Provides an independent public prosecution service, investigates sudden and suspicious deaths and handles complaints against the Police in Scotland. The Service has extensive responsibilities in the investigation and prosecution of crime. It decides whether or not to start criminal proceedings, even if the accused has not yet
been arrested or charged by the police, and the Crown is not required to give any reason for the decision
Crown Prosecution Service
Prosecutor in England and Wales
Prosecutor in England and Wales
Crown Prosecution Service
Barrister
A lawyer in Britain who has the right to argue in higher courts of law
rights of audience (that is, a right to plead)
lawyer in Britain who has the right to argue in higher courts of law
Barristers
Solicitor
Gives legal advice and deals directly with clients.
Perform legal research and investigates course work
Gives legal advice and deals directly with clients.
Perform legal research and investigates course work
Soliciter
Roles and Functions of Prosecution
1- state sanctioned power to raise criminal cases- prosecutor as representative of the public interest, there is a state monopoly on responses to violence, generally raised this over time from the state and victim, used to be victim’s family of victim’s responsibility, cool detached role as opposed to invested victim
role and functions. more than just a stage in the process and a set of actors,
an institution that has a set of important social functions and meanings:
represents:
prosecution represents staged opportunity for public affirmation of norms and wrongdoing an consequences of breach
durkheim said that it reinforces shared ideals and values over conduct
-sends message out to the public
- prosecution decisions shape number and nature of crimes prosecuted
- shapes type of crimes that come into court
- this is shaped by others too, police and victims
Collective Conscious
The totality of beliefs and sentiments common to the average members of a society forms a determinate system with a life of its own - Durkheim
expressive role
prosecution represents staged opportunity for public affirmation of norms and wrongdoing an consequences of breach
durkheim said that it reinforces shared ideals and values over conduct
What proportion of crimes committed result in conviction
2%
Models of Prosecution
1 model of legality
- mandatory prosecution where sufficient
- found in systems that have criminal and legal codes
- little prosecutorial discretion - written out in advance
- germany and italy
#2 expediency - us and uk -gives wide discretion and flexibility to prosecutor over decisions over most stages
- prosecutor has power to investigate crimes at an early stage of the process
- investigatory powers
most systems are actually hybrid models
Concept of public prosecution developed when in scotland
15th century
Accountability in Scottish law
Lord Advocate directly accountable to Scottish Parliament
Procurator Fiscal accountable only to Lord Advocate
Negative Aspects/Implications of Discretion
Subjective judgement
Potential for discriminatory practices
Disparity and inconsistency- not everyone treated equally, given the same punishments etc, dealt with differently
Tension with ideal of equality before the law
Positive Aspects/Implications of Discretion
Allows flexibility
Avoidance of harsh/indiscriminate application of rules
Mercy and compassion?
External Mechanisms that can control Discretion
accountability to parliament
statutory limits
court decisions
inspectorate of prosecution
public and media scrutiny
Internal Mechanisms that can control Discretion
marking guidelines and codes of practice (now published)
policy
ethical restraints
transparency about decisions
Sentencing Rationales
- Retribution
- Incapacitation
- Deterrence
- Reform and rehabilitation
- Protection of the public
- Reparation
discretionary sentencing by judges often characterized as
An intuitive rather than rational process
Justified retrospectively
Likely to result in inconsistency
David Hutton says what about discretion in sentencing
the decision comes first. In all but the hardest cases, the judges “know” what the right decision is, call this instinctive synthesis or whatever you like… if required to justify this decision, post facto arguments can be constructed
Studies of inconsistency in sentencing
little research carried out about sentencing inconsistency in uk
-some limited evidence of it (millie 2007)
more research done in US- Doerner JK (2010) found sentencing variations according to racial and social structured position in society
some limited evidence of inconsistency in scotland
sentencing commission of scotland said in a statement that although there is little evidence of it, there is“public perception of inconsistency in sentencing that is a danger to public confidence in the criminal justice system”
sentencing guidelines are likely to be implemented in scotland soon
More restrictive sentencing found in countries like the US that have
numerical grids - thought to increase punitiveness
What is the most common sentence given to convicted offenders
fines
How can prisons increase the odds of reoffending?
severance of ties with family and community; they draw resources away from services and institutions that benefit all Scotland’s citizens. Scottish Prisons Commission
stigmatization associated with prison sentence - getting a job
gangs? school of crime - how to commit crimes and avoid detection more effectively - internalize norms of subculture - low risk with high risk offenders
Recidivism
act of a person repeating an undesirable behavior after he has either experienced negative consequences of that behavior
- often refers to criminals
Solitary Confinement and Recidivism
The
increased stress of this extreme isolation and confinement may impair
inmates’ mental health, which in turn may cause them to commit more
violent acts, either within prison or upon release
Labeling theory and Recidivism
According to the school of thought known as “labeling theory,” when someone is punished for committing a criminal offense, he is effectively being labeled by the community as bad or deviant, and, in short, “[t]he person becomes the thing he is described as being.”
How many people in prison in US per 100,000
743
Relation between prison rates and crime rates
no relationship between prison rates and crime rates,
finland has lowered its prison population and its crime rate has flattened
More people are being held in prison for what?
more prisoners being held on remand (in prison waiting for sentencing)
more people being held for shorter sentences
89% of prisoners in scotland are being held for 6 months or less, shows that these crimes arent desperately serious
more prisoners being given shorter sentences
there is an argument that we are using prisons for people who are…
troubled and troubling, not people who are dangerous- prison being used as a dumping ground for these people
Commission on English Prisons Today, 2009
Prison Social Control
Commission on English Prisons Today, 2009
academics and policy makers
“Prison is demonstrably a highly selective tool for social control. It disproportionately targets black and ethnic minorities, the poor, the young, the troubled and the troubling. Prison, for example, is rarely deployed as a punishment for those responsible for state and corporate crimes.”
non numeric sentencing
“guidance by words” – sweden, not very prescriptive and still allow discretion in sentincing by judges
Ashworth (1992) considers three techniques for reducing sentencing disparity
(i) Statutory sentencing principles,
(ii) Judicial self-regulation, and
(iii) Numerical guidelines.
Statutory sentencing principles
The idea behind this approach is to declare the leading principles of sentencing in legislation, but leave the judges to apply and to individuate these principles.
Sweden and England are examples of countries in Europe, where this approach has been implemented
one of the three techniques for reducing sentencing disparity laid out by Ashworth 1992
Judicial self-regulation
one of the three techniques for reducing sentencing disparity laid out by Ashworth 1992
There are two central advantages of adopting a widespread fixed penalty system.
First, as, sentencing will become a more consistent and fair practice.
Secondly, there will be considerable economic savings to the community. Valuable court time will no longer
need to be spent ascertaining every minute detail concerning the offense and the offender.
Criticisms of Fixed Penalties
First, opponents argue fixed penalties are too tough. Second, they lead to unfairness.
The most common criticism of fixed penalties is that they are too severe. Fixed penalties are
regularly introduced as part of a `get tough on crime’ political agenda
The claim that many fixed penalty regimes are too harsh is well founded. A good example is
the three strikes law in California.
Canada explicitly rejected the use of presumptive guidelines in the 1980s, Western
Australia in 2000, while England and Wales declined their adoption in 2008.1
discretion in UK sentencing
sentencing guidelines with increasing levels of seriousness and culpability
offence specific guidelines and generic guidance
-more flexible than numeric guidelines
2 steps
1-starting points
2-aggravating and mitigating factors
This discretion is exercised within legislative boundaries
that set maximum penalties. The sentencing discretion is also structured by common
law sentencing principles and doctrines
The High Court of Justiciary
Scotland’s supreme criminal court. When sitting at first instance as a trial court, it hears the most serious criminal cases, such as murder and rape. Also hears criminal appeals
Trials before a single judge of serious crimes such as murder, rape, armed robbery and terrorism. Sitting with a jury of 15 with 3 verdicts: guilty, not guilty and not proven
Common law
refers to law and the corresponding legal system developed through decisions of courts and similar tribunals, rather than through legislative statutes or
executive action.
Mitigating factors
Facts which reduce the gravity of an offence by reason of unusual or extreme
elements leading up to or attending the commission of the offence.
Aggravating factors
Any circumstance attending the commission of a crime which increases its guilt or
enormity or adds to its consequences, but which is above and beyond the essential
constituents of the crime itself (e.g. racially or religiously aggravated offences)
Justice of the Peace Courts
deal with many minor offences, including breach of the peace, minor assaults, petty theft, and speeding
Sheriff Court
The majority of cases are dealt with in the country’s Sheriff Courts unless they are of sufficient seriousness to go to the Supreme Courts at first instance.
The Sheriff Court involves summary and solemn trials. The Judge is a qualified lawyer, known as a Sheriff, who must have at least 10 years legal experience. In summary criminal cases there is no jury and the Sheriff decides whether the accused is guilty or not and then decides the sentence. In solemn criminal cases, which are more serious cases, there is a Sheriff and a jury. The jury decides whether the accused is guilty or not and the Sheriff then decides the sentence.
Who decides in which court the case will be heard?
The Procurator Fiscal decides which court the case will be heard in. Generally cases in the sheriff court, Justice of the Peace Court
In BLANK trials there is no jury and a judge (justice of the peace or sheriff) decides whether the accused is guilty or not and then decides the sentence.
In summary criminal cases there is no jury and the Sheriff decides whether the accused is guilty or not and then decides the sentence.
In BLANK criminal cases, which are more serious cases, there is a judge (Sheriff or judge) and a jury.
In solemn criminal cases, which are more serious cases, there is a judge (Sheriff or judge) and a jury.
Plea in mitigation
Any factors that the accused’s lawyer thinks should be taken into account before the judge passes sentence after a finding of guilt.
Right to Counsel
Right to counsel means a defendant has a right to have the assistance of counsel (i.e., lawyers), and if the defendant cannot afford a lawyer, requires that the government appoint one or pay the defendants legal expenses. The right to counsel is generally regarded as a constituent of the right to a fair trial.
The majority of state funded criminal defence work is provided by private lawyers contracted to the Legal Aid Agency and paid by the case under the legal aid scheme.
In Scotland a wider network of Public Defender Solicitor Office lawyers employed by the Scottish Legal Aid Board are available to represent those accused of crimes in addition to private lawyers paid under the legal aid scheme.
6th amendment
Mandatory Minimum Sentences
Mandatory minimum sentences are minimum sentences prescribed for a particular offence. The minimum sentence may be determined by the offender’s criminal record, as well as by the offence. Judges must sentence between the minimum and maximum penalties
to reduce sentencing disparity
Retribution
s the notion that the guilty ought to suffer the punishment
that they deserve
Deterrence
Deterrence aims to prevent future criminal activities
Rehabilitation
The assumption of rehabilitation is that people are not permanently criminal and that it is possible to restore a criminal to a useful life, to a life in which they contribute to themselves and to society
Rehabilitative theories involve a philosophy that the offender’s behaviour can be changed by using the opportunity of punishment to address the particular social, psychological, psychiatric or other factors which have influenced the offender to commit the crime
Incapacitation
An offender may be imprisoned for the purpose of preventing him or her committing further offences during the period of incarceration, in order to protect the community
In the mid 1970s the US implemented what style of sentencing, in an attempt to introduce more coherence and consistency
(Numeric) Grid Sentencing
Some grids allow judges to depart from the prescribed sentence range,after giving reasons for doing so, or in special circumstances. - flexibility
Most US State guidelines systems cover felony
crimes only, although some cover misdemeanours as well.
additional factors for the judge to conside
aggravating and or mitigating
- gravity of the offence
- impact on the victim
- offender’s circumstances (such as age, offending history, level of remorse shown)
What % of prisoners in Scotland are being held for 6 months or less,
89%
shows that these crimes aren’t desperately serious
trend of giving more short sentences, especially to none serious offences
the rise of the prison, wasnt till..
The 1800s. Before that, it was used to hold defendants before trial/punishment. wasnt a form of punishment in and of itself
held on remand - pre trial detention
During the 18th century, popular resistance to public execution and torture became more widespread both in Europe and in the United States, and rulers began looking for means to punish and control their subjects in a way that did not cause people to associate them with spectacles of tyrannical and sadistic violence. They began to look towards developing systems of mass incarceration as a solution
Held on Remand
Pre-Trial Detention
Jeremy Bentham
A 19th century British philosopher, and social theorist. He is regarded as the founder of modern utilitarianism.
Came up with a design for a prison he called the panopticon , maximize surveillance - thought surveillance would lead people to moderate their own behavior- like cctv
Prison as a Punishment includes what
- Deprivation of liberty
- Freedom of movement
- Freedom of association - Deprivation of goods and services - cigarettes, alcohol etc
- Deprivation of sexual relationships
- Deprivation of autonomy
- Deprivation of security
Sykes, G (1958)
could even by symbolic- power of the state
Prison as Rehabilitation includes what
- programs
- education
- addressing
- drug treatment
- counselling
prison is a dumping ground for
prison is a dumping ground for troubled
multiply disadvantaged
Benefits of community punishment
“Most community penalties are less punitive, less destructive of people’s lives, cheaper, more flexible, and more readily adapted to the particular needs of the offender” (Zedner, 2004)
•Cheaper
•Flexible
•Maintain links with family, work and wider community
•Not as stigmatizing
•Allow offender to ‘pay something back’ to the community (Scottish Government 2007)
Criticisms of Community Punishment
in 1980s when community punishment began to be used more and more there was a rash to criticize them. they become disproportionate and intrusive.
•Appears to be benign, but:
–Greater sentence than that merited by offence
–Lack of due process and proportionality (Cohen 1985) (punishment not decided by judges but others who are basically diagnosing you)
–‘Sentence stacking’ and ‘up-tariffing’ (risk of jail if you fail) longer and longer sentences if you fail
–Encourages recourse to formal justice
-it can lead to pulling less serious offenders higher up into the system
•“Extension and multiplication of the judicial gaze” further into the lives of offenders(Garland 1985)
•The “dispersal of discipline” through other institutions into other professions now all doing the states work. (Cohen 1985) other professionhs all doing states work. states work and control being dispersed through other professions beyond criminal justice system. result is net widening
•“Net widening”: (Cohen 1985) more offenders being pulled in. we think we can do something to help them. new kinds of people. troubling. kept in for longer. we dont always know who is holdiont the net/none crim justice people
–Nets get bigger (catching more offenders)
–Cast in different parts of the sea (catching different offenders)
–Holes in the net are smaller (keeping offenders longer)
–Net is not always visible
“Net widening”
•“Net widening”: (Cohen 1985) more offenders being pulled in. we think we can do something to help them. new kinds of people. troubling. kept in for longer. we dont always know who is holdiont the net/none crim justice people
–Nets get bigger (catching more offenders)
–Cast in different parts of the sea (catching different offenders)
–Holes in the net are smaller (keeping offenders longer)
–Net is not always visible
community punishment
Restorative justice may widen the net of social control by receiving cases that the formal court-system would not have received, or by imposing sanctions not utilized by the formal justice system
