Key Terms & Concepts

Question 1

Discretion:

Answer 1

The decision making power of legal and criminal justice officials to interpret law and administrative rules; the ability to choose between options in a particular situation.

Question 2

Retributive and utilitarian punishment: (Retributive punishment)

Answer 2

A backward-looking form of punishment that focuses on the crime and relates the amount of punishment to the degree of blameworthiness for the crime. The major forms of modern retributive punishment are desert-based sentencing schemes, including those for prison and fines.

Question 3

Crime control and due process models:

Answer 3

Termed coined by Herbert Packer (1968) to refer to a model of criminal justice whose primary value is efficiency and whose primary function is to control crime by apprehending and convicting those who commit crime. See also due process model.

Question 4

Due process model:

Answer 4

Term coined by Herbert Packer (1968) to refer to a model of criminal justice whose primary value is reliability and whose primary function is to ensure that crime is controlled in a lawful manner and that citizens are not subject to abuses of state power.

Question 5

Processual and dispositive decisions:

Answer 5

(Processual decision) A decision about the processing of the case from initial charge through to trial; this includes police procedures in questioning suspects and gathering evidence, and prosecutorial decisions on what charges to lay. Processual decisions are guided by values of legality and equality before the law.

Question 6

Dispositive decision:

Answer 6

A decision in the criminal process about the disposal of a case. This occurs primarily at sentencing, but may also occur when cases are diverted from court. Dispositive decisions are guided by values of proportionality and crime prevention or reduction.

Question 7

Indeterminate sentencing:

Answer 7

The dominant form of sentencing in common law countries from the latter part of the 19th century to the latter part of the 20th century. Based on the rehabilitative ideal, the sentencer announces an indefinite length of incarceration time, and release from prison is decided by parole boards and putatively based on the individual’s “own exertions”.

Question 8

Desert-based and individualised sentencing:

Answer 8

A modern form of retributive (backward-looking) punishment where the penalty structure is to reflect ordinal proportionality (that is, as offences become more serious, so too should the penalties) and where the absolute level of punishment is to be in proportion to the harm.

Question 9

Accountability:

Answer 9

The capacity to be held responsible for one’s actions or statements.

Question 10

Informal justice:

Answer 10

A variety of practices that give a central role to the decision of citizens (not just legal professionals) and to methods of responding to crime that directly engage victims, offenders and the community. Examples include victim offender mediation and reconciliation programs, community boards, and community justice centres in the 1970s and 1980s, and forms of restorative justice in the 1990s and first decade of 2000

Question 11

Restorative justice:

Answer 11

Umbrella concept that refers to a variety of practices, which normally bring victims and offenders and their supporters together to discuss an offence and its impact, give a greater role to non-legal participants, and emphasise an offenders accountability for an offence and making reparations to a victim.

Question 12

Reintegrative shaming:

Answer 12

term coined by John Braithwaite (1989) to describe an alternative method of responding to crime: denounce the act (shaming), but at the same time, support and encourage an offender to become a law-abiding member of society (reintegration).

Question 13

Indigenous justice:

Answer 13

a variety of contemporary justice practices in which Indigenous people have a central role and degree of control in responding to crime and sentencing of offenders.

Question 14

Therapeutic jurisprudence:

Answer 14

refers to a way of judging and a set of practices that are part of problem-solving courts. Ways of judging include active interaction between a judicial officer and defendant to encourage and motivate him/her to confront and solve his/her problems.

Question 15

Crime prevention:

Answer 15

term applied to a wide range of strategies, programs and techniques aimed at reducing crime and its impacts.

Question 16

Environmental prevention:

Answer 16

initiatives to reduce crime by modifying physical environments. Environmental prevention often works by trying to reduce opportunities. As a broad term, environmental prevention encompasses a number of specific schools which include Crime Prevention Through Environmental Design (CPTED), routine activity theory and situational crime prevention.

Question 17

Situational crime prevention:

Answer 17

attempts to reduce specific forms of crime by manipulating the immediate contexts in which they occur. Situational prevention is based on the theory that at the instant an offence is committed, an individual makes a rational choice based on an assessment of efforts, risks and rewards. Situational prevention tries to change the decision-making calculus by increasing perceived efforts and risks and by reducing rewards and rationalisations.

Question 18

Criminal injuries compensation schemes:

Answer 18

statuary schemes under which Australian States provide financial support for victims of crime.

Question 19

Secondary victimisation:

Answer 19

people may be adversely affected by a crime itself (primary victimisation) or by the way that others, including criminal justice agencies, respond to the primary victimisation (secondary victimisation).

Question 20

Victim impact statement (VIS):

Answer 20

a way for victims to make a personal statement to the court about the impact that a crime has had on them.

Question 21

Victim’s Charter:

Answer 21

a government attempt to set out the rights of victims of crime and establish an integrated framework of good practice that runs across all agencies of the criminal justice system.

Question 22

Victim’s lobby:

Answer 22

organisations and individuals who call for legal and social change on the basis of the perceived needs of victims. Definitions of the needs of crime victims may be open to political manipulation.

Question 23

Victim-offender mediation:

Answer 23

an informal justice procedure involving a victim and offender that aims to identify ways that an offender may repair the harm caused to the victim by the offence. Restorative justice grew out of early victim-offender mediation programs.

Question 24

Miscarriages of justice:

Answer 24

refers to acts of “commission”, for which a person is wrongly convicted, or acts of “omission”, for which people who have committed criminal offences are not charged, prosecuted, or convicted.

Question 25

Wrongful convictions:

Answer 25

includes “actual innocence”, where a convicted person did not commit the offence, and convictions only gained because of an unfair trial. All stages of the investigative, pre-trial, and trial processes can contribute to wrongful convictions, with the main causes including tunnel vision, unethical police or prosecutorial conduct, faulty eyewitness identification, false confessions, use of informants or “snitches”, mistaken scientific evidence, and insufficient legal representation.

Question 26

Innocence projects:

Answer 26

dissatisfaction with systemic responses to wrongful convictions (especially in cases in which the death sentence has been imposed) led to the creation of external agencies to reinvestigate suspected miscarriages of justice. The first was created at the Cardozo Law School in New York in 1992. It is a non-profit legal clinic, staffed largely by students, which investigates cases where post-conviction DNA testing of evidence can yield conclusive proof of innocence. Similar clinics now operate in some Australian law schools.

Question 27

Double jeopardy:

Answer 27

a rule existing at common law that prevents a person from being placed in peril of being convicted of the same crime arising from the same conduct on more than one occasion. The rule recognises the value of finality in the criminal process and the unfairness of putting a person on trial more than once for a particular crime and set of circumstances.

Question 28

Impunity:

Answer 28

circumstances when a decision is taken not to proceed, or it has proven impossible to bring a person to account for their actions. The result is that the person avoids the consequences normally associated with committing actions. The term normally refers to the failure of the criminal justice system, due to corruption, intimidation or incompetence, to charge and prosecute persons reasonably suspected of having committed crimes.

Question 29

Under-policing:

Answer 29

refers to the relative lack of police services (both preventative and investigative) provided to groups who experience high levels of victimisation. The phrase is used to describe the situation in some Aboriginal communities, where women and children suffer extreme levels of sexual and other forms of violence.

Question 30

Human rights:

Answer 30

are a series of minimum standards directed at governments and state authorities that aim to preserve the rights of citizens.

Question 31

Social contract (Social contract theory):

Answer 31

A variety of ideas developed during the 17th and 18th centuries that assumed the need for individuals to surrender a portion of their freedom in exchange for their protection by the state. The contract between government and state is tacit.

Question 32

Sovereignty:

Answer 32

A term in international relations and international law, which refers to the independence of individual states (countries) from other states in the conduct of their domestic affairs.