Introduction to Criminal Justice

Introduction

It is no exaggeration to say that modern societies are ridden with conflicts. From petty arguments to major crimes hardly a day passes without the average person becoming involved in some form of conflict. Most of these will be too trivial to be regarded as crimes. If I walk off with your pen or pencil I might get a few angry words but you are hardly going to call the police. If I walk away with your laptop computer then it's likely to be a different matter. If I get really angry with you in a bar and start pushing you and you hit me, we both might think better of it after we have 'cooled down'. If I wait for you outside the bar with a knife then it's a different matter.

Societies make decisions about what things are labelled as crime and regarded as worthy of serious intervention and what things are left to vaguer, non-criminalised categories of 'trouble' or 'bother.' Such decisions may, of course reflect all sorts of power relations and some people may be disadvantaged as a result. It is only recently that such things as marital rape were taken seriously as crimes. On the other hand the de-criminalisation of homosexual acts between consenting adults in private is seen as a step forward.

Criminal law then, notes those types of conflict which are regarded as serious enough to be responded to not just by individuals but by the State acting on behalf of the public. The essence of criminal law is crimes are offences against society as much as against the particular victim. They are regarded as too serious to be just a matter of dispute between two individuals. The latter is the proper object of civil litigation. I insult you, you sue me in the civil courts. Damages may be awarded but the state or 'the public' is not seen to have a particular interest in the outcome. A civil litigation will be entered into the court lists as (for example) "Lea vs. Bloggs" whereas a criminal trial will appear in England as "Regina vs. Lea". Literally it is the monarch prosecuting (or 'the Crown' as it is known these days). In fact it is the state prosecuting authorities. They are seen as acting on behalf of the public. In most jurisdictions in the United States it will be entered as "The People vs. Lea." In some jurisdictions in Continental Europe it will appear as "The Republic vs. Lea." Whatever the particular language the priniciple is the same. The state acts against crime because activities regarded as crimes, and in express violation of the criminal law, are seen to be not only injury to the offender but to society as a whole. We all, as it were, have an interest in solving the theft of your property because such events are a threat to public order in the general sense that they interfere with individual freedom and the normal conduct of life.

 So the state, through its agencies dealing with criminal justice (generally police, prosecutors, courts, prisons and other punishment systems) acts against those forms of conflict or harm infliction serious enough to be regarded as crimes against society not just against the individual victim. But, and it is important to understand this, the state reserves for itself the unique right to act against such crimes. If you and I decide we have had enough of petty crime on our housing estate and so we select some of our young men, give them badges and weapons and send them out to apprehend local offenders who are then hauled before a makeshift court presided over by one or two of the more senior citizens living on the estate, and sentenced to various periods of imprisonment to be served in a disused storage room in the basement of one of the housing blocks, we will be accused of 'taking the law into our own hands'. We ourselves will probably be charged with something like 'false arrest and imprisonment'. The state reserves the right to arrest, try and imprison individuals within its territory. If someone else does it then this it itself regarded as crime. As the German sociologist Max Weber expressed it: the modern state has a monopoly of the legitimate use of force within its territory.

However, we should be aware that from time to time, more in some countries than others, organised groups of people do indeed 'take the law into their own hands.' During the troubles in Northern Ireland we became aware of the frequency of 'punishment beatings' by paramilitary groups. One of the most graphic portrayals of such 'alternative' enforcement is the opening sequence to the first 'Godfather' movie

The opening scene of the first Godfather movie (based on the novel by Mario Puzo) with Marlon Brando as the mafia boss Don Vito Corleone) evokes a stylised 'Sicilian' view of the American Mafia    Set in the United States and beginning sometime in the late 1940s when the mob was still very powerful, the scene is the wedding of Don Vito’s daughter. It is a thoroughly Italian occasion though by no means all the guests are Italian-Americans, and neither are some senior members of his mafia ‘family’. Don Vito sits in his office with the party going on outside in the garden. There is a constant flow of people who have come to see Don Vito, to bring wedding gifts, to pledge undying loyalty and to ask favours. The first of the latter is an undertaker (Mr. Bonasera) whose daughter has been badly beaten up and disfigured by her boyfriend. The young man has received what Bonasera regards as a paltry sentence in the courts. He has come to plead with Don Vito to impose ‘real justice’. Bonasera says: "I believe in America. America has made my fortune. And I raised my daughter in the American fashion. I gave her freedom, but - I taught her never to dishonor her family. She found a boyfriend, not an Italian...Two months ago, he took her for a drive, with another boyfriend. They made her drink whiskey. And then they tried to take advantage of her. She resisted. She kept her honor. So they beat her like an animal...She was the light of my life - my beautiful girl. Now she will never be beautiful again...I-I went to the police like a good American. These two boys were brought to trial. The judge sentenced them to three years in prison - suspended sentence. Suspended sentence! They went free that very day! I stood in the courtroom like a fool. And those two bastards, they smiled at me. Then I said to my wife, 'for justice, we must go to Don Corleone.' " Don Vito reluctantly agrees but only if the man kisses his hand and pledges loyalty to him as Godfather and understands that he may 'one day, though that day may never come' be called upon to perform a task in return. Don Vito says to him words to the effect ‘But why did you go to the police. Why didn’t you come to me in the first place.?' Click on the picture above to read the transcript of the conversation on the Godfather official web site

Of course the American state law enforcement agencies spent, and indeed still spend, a considerable amount of time and resources attempting to disrupt and imprison such people as Don Corleone. But nevertheless Bonasera's plea to the Don to avenge his daughter raises the key questions of what criminal justice is about

• What is justice? Bonasera feels justice has not been done in the form of a suspended sentence for the young men who disfigured his daughter. He went to the police 'like a good American' but has lost faith in the ability of the criminal justice system to deliver justice. Therefore he goes to Don Vito

• Who should administer or deliver justice?  Bonasera says to his wife 'for justice we must go to Don Corleone.' He now accepts, albeit reluctantly, that only the Don and his mobster thugs can deliver the 'proper' sentence upon the young men.

The study of these and similar alternative forms of 'law enforcement' is an important area of criminological study but it is not what we are going to do in this course. Here our concern will be solely with the 'official' organs of the state, the 'criminal justice system.

Another recent (2007) example of people 'taking the law into their own hands' comes from the city of Rio de Janiero (Brazil) where privately organised paramilitary groups fight gun battles with drugs traffrickers. You can read about it here

Studying the Criminal Justice System

The criminal justice system, then, is a set of institutions (police forces, prosecution services, courts, various penal systems and their associated bodies of professionals) which are part of the state apparatus and which respond to a particular set of conflicts in society; those defined as crimes.  The criminal justice system is, of course, not the only way of dealing with those forms of conflict defined as crime. Parts of the system may be substituted under various circumstances by forms of crime prevention. Individuals may be 'diverted' from the system at various stages into mechanisms such as mediation or restorative justice, and forms of community service. 

What is the best way to study the working of the Criminal Justice System? One obvious approach is to see the system as a 'chain' of linked institutions or 'doors' through which individuals may pass.  Starting with the commission of a crime and concluding with the punishment of the convicted offender

  (a more detailed description of the criminal justice process can be found on the criminal justice online website. You can also download this useful introduction from the Home Office website)

Some people put in an appearance only at a particular stage in this chain of events: bystanders giving information to the police, people appearing as witnesses in court. Others--those accused of crimes--progress through these doors. Some only get only so far and then 'leak' out of the system. Others go the whole way, and end up in prison. Various interesting things happen to them while they go through the system.  We can then focus on the factors which determine what happens at a particular stage of the process and which determine the progression of an individual to the next stage. 

There is, indeed, quite a lot of 'leakage' on the way through the system. A common way of illustrating this is that for every 100 crimes committed:

50 will be reported to the police 
30 will be actually recorded as crimes by the police 
7 will be 'cleared up' (someone will be charged) 
3 will result in a conviction in the courts

As we shall see, there are various ways of 'dropping out' without completing the whole journey from committing a crime to being punished

This is the way we have organised this course: We shall follow this trip through the different institutions and at  each stage we can stop and see what sorts of factors are influencing the working of the particular branch of the CJS and influencing progression to the next stage. The  factors at work are quite complex. We shall illustrate this here by just looking at the first stage: reporting a crime.

Starting the process: reporting a crime

The first stage of the process that galvanises the whole system into action is the reporting of a crime to the police.  The police are overwhelmingly a reactive organisation when it comes to crime. That is to say over 90% of crimes that come to the attention of the police are reported to them by the victim or another person. The chances of police officers happening to be around when a crime is committed are very low. So this first, absolutely crucial, stage of the criminal justice process concerns the interactions between police and the members of the public wishing to report a crime.

Deciding to report a crime is a decision to 'hand over your problem to the state authorities', in this case the criminal justice system, to allow them to take it over and decide what is going to happen next. Nils Christie, the famous Norwegian criminologist felt this is a negative process and we ought to be enpowered to sort out our problems among ourselves without the intervention of the criminal justice system. Restorative Justice, it may be argued, acknowledges some of the points he raised.

(you can read his article Christie, N. (1977) 'Conflicts as Property'. British Journal of Criminology 17: 1 pp. 1-15.)

So why would people report a crime to the police? Some obvious reasons might be:

• They have confidence that the police will take the crime seriously, find the offender and the courts will deal out justice. This is the ideal state of affairs

• They have no other ways of sorting out the problem. So they call the police with some reluctance even though they regard them as ineffective or likely to be aggressive (racist or sexist) and believe that even if someone does get arrested and taken to court, the outcome is a lottery. This, some people might consider, is a bit more realistic than the previous point.

• Maybe, in the case of theft or burglary, the insurance policy insists the crime is reported. But what you're interested in is collecting the insurance, not the outcome of police investigations.

Such considerations will obviously vary for different types of crime and the state of police-community relations. In other circumstances, even though a 'crime' has taken place matters would not get reported to the police. It is important to consider why crimes might not  be reported to the police. This is an important consideration when we come to ask about the efficiency of the criminal justice system and whether it is serving the public.

People might not report a crime if:

• they may believe the police are just so inefficient, or are likely to be hostile or racist or sexist, so it's not worth the hassle. 

• they may believe the police and other parts of the criminal justice system would tackle the crime but would not be able to defend them against revenge from the criminals. These latter may range from organised crime, powerful drug dealers, violent husbands or partners. Women may think twice about reporting rape or domestic violence just as small restaurant owners being forced to pay protection money to local gangsters may think twice about going to the police.

• confidence in the criminal justice system is so low that it is considered not worth the trouble. It is better to suffer the consquences of victimisation. Maybe, also, the victims are themselves involved in crime and don't want the police to come nosing around and notice other illegal activities in the community. 

• maybe the activity concerned, although regarded as a crime by the law and the criminal justice system, is not even regarded as such by ordinary people. Who, in a poor community, is going to report shoplifting, the availability of cheap stolen goods, smuggled alcohol or tobacco?

So the public have a good deal of discretion concerning whether or not to report a crime to the police and thereby trigger the criminal justice system into action. It is important to understand that the police and other criminal justice agencies excercise similar discretion. The police, called to an incident by members of the public, may decide, for example, that it is not appropriate to make an arrest. If the incident is, for example, a fight between people who know each other, the police may simply request the participants to cool down and behave themselves and give a warning that next time there will certainly be some arrests. If they consider the offence too trivial they may decide that it is not a good use of time and resources to pursue it further.

 If the police do decide to pursue the case and to seek to apprehend the offender they will then go about gathering information, taking statements from witnesses, putting up notices asking members of the public who might have been at or near the incident to phone and give information if they 'noticed anything.' 

If all this information leads the police to successfully arrest and charge someone for the crime the case will then be handed over to the prosecutors who prepare the case for court trial. The prosecutors also have a considerable degree of discretion about whether to proceed further with the case. They will have to decide whether there is enough evidence for the case to stand a chance of conviction in court. Cases considered too weak, or for which it is considered against the public interest to pursue, may be dropped at this stage. The next stage is the court trial itself. The outcome will be conviction or acquittal: guilty or not guilty (In Scotland a third outcome of 'not proven' is possible though these days it is not regarded as very satisfactory.) If the outcome is conviction, then the court will decide the type of sentence. This will lead to some form or other of punishment which may take the form of custody (imprisonment) for various periods of time, fine or a certain number of hours of community service.

What sort of factors influence the working of the CJS?

Sociological

These are the type of factors we have just been talking about. They concern cultural attitudes and power relations between individuals and groups. They are crucial but often courses on criminal justice make little mention of them. Two types of sociological factors which are absolutely crucial to the practical working of the system are:

social background: police, judges, lawyers are not just functionaries, they are also social groups which cultural attitudes, class, race and gender backgrounds. Issues such as how 'closed' is their occupational culture, how representative they are of society in general, how do they treat people not like them. For example, despite attempts to increase recruitment from non-white ethnic groups, the majority of police in England are white males from an upper working or lower middle class background. Most of the offenders they deal with are young, poor and frequently of non-white ethnicity. The contrast is even greater when we get to lawyers and judges. It is important to consider what effect such factors have, not just on the reporting of crime but of the progress of cases through the system. 

power relations: have an important effect on criminal justice. Two types of power relations are important:

within criminal justice institutions: these are of particular importance. For example: once the police get you into the police station you are on their territory. Many people find this intimidating. The police have a lot of practical power over events in such situations e.g. in allowing you to contact your lawyer. This power may be sometimes exercised irrespectively of what the law specifies as your rights. Some people for example may be more likely than others to confess to things in the rather intimidating environment of the interview room. Similar issues concern the effects of imprisonment? A particular concern at the present time is the large number of suicides. Is this a result of the particular experience of the prison environment? Another set of issues concerns the prison as environment. 

in society:  We can deal more systematically with these relations in terms of the following diagram, sometimes referred to as the 'square of crime'

It is possible to specify the conditions under which criminal justice systems can effectively operate in terms of the relations of power and communication between these four agents.

CRIMINAL JUSTICE SYSTEM:  As part of the state the criminal justice system is, crucially, more powerful than the offender. Modern forensic methods, combined with the flow of information given by the community enables the tracking and eventual apprehension of offenders.

There are no rural areas to which the police do not have rapid access. The modern city contains no 'rookeries' or 'no-go' areas for the criminal justice or other state agencies. This condition, crucial for the working of the system can no longer be taken for granted in a globalised world in which sophisticated international organised crime groups can effectively challenge national law enforcement agencies. But even as far as traditional petty crime is concerned, a remarkably small percentage of reported offences are cleared up

OFFENDER: Criminal offenders are weaker than both the community and state. 

While victims may be overpowered by offenders, the latter are not in a position to challenge either the public or the state. The public, local communities, therefore feel able to collaborate with the police, through providing information, witness statements, appearing as witnesses in court or members of juries without fear of reprisals from offenders. Again, this condition cannot be taken for granted. Jury 'nobbling' and the intimidation of witnesses by criminals is a problem of increasing concern to criminal justice agencies

COMMUNITY: Both the criminal law itself and the criminal justice agencies can be expected to enjoy the broad support of the gneral public and in particular the communities within which particular crimes are committed. There are two preconditions here

Firstly, not only is the public able to call upon criminal justice agencies to attend to crime, to supply information, appear as witnesses in court etc., but it is also willing to do so. The public accepts the legitimacy of the criminal justice agencies, and has a reasonable confidence in their ability to function: that the police will attempt to find and apprehend the offender, that they--the police--are reasonably free of corruption; that trials will be fair, that the actual offender and not someone else, will be convicted, and that punishments will be in accordance with general public expectations. 

Secondly, that the criminal is marginalised from the community and regarded as harmful. Where the contrary is the case, for example where the community supports and sanctions a certain type of criminality (e.g. smuggling alcohol and tobacco, smoking cannabis) then information will not be willing given to the authorities and the offenders will not be treated as criminals .

VICTIM: The victim 'hands over' all aspects of crime control to the state and accepts a role as passive onlooker (as witness for the prosecution). 

We have already mentioned examples of where the victim does not 'hand over' matters to the state but may either be too afraid to involve the criminal justice agencies or, have not confidence in the latter.

By stating some of the power relations which are preconditions for the functioning of criminal justice in a negative form, we can see more clearly the very specific conditions in which it can function. We can discuss the extent to which these conditions exist, how precarious they are, and what the likely tendencies of development are. This takes us well beyond a purely legal view of the criminal justice system.

Organisational

Criminal Justice agencies are large bureaucracies employing thousands of people. The way their work is organised, the way in which the different agencies interact has important effects on their ability to deal with crime. For example:

• How do the police operate, are they efficiently organised, are there enough of them? Are detectives properly trained, do they have the correct forensic tools?

• Do prosecutors, get enough information from the police to take case to court? Do they liaise effectively with police?

• Is the adversarial trial (battle between prosecution and defence) the best method of getting at the truth? Are juries enabled to work effectively
  Are judges properly trained so their sentencing has some relevance to reforming as well as punishing the convicted offender?

Moral

Finally, the work of the criminal justice agencies raises moral issues such as:

• What is 'Justice' Is justice being properly delivered by the CJS: are the right people being put away, are too many innocent people being wrongly convicted?

• Are the civil rights of the majority of people being preserved. Is there too much surveillance? Do the authorities violate the privacy of ordinary citizens too much even if in the cause of pursuing criminal offenders? 

• What is the legitimacy of punishment? Should some people be locked up forever, what should the appropriate penalty for murder/violent theft/fraud/child abuse be?

Legal

Legal issues are of course central to the working of the system. There are two types of legal rules which are crucial to the working of the CJS

• criminal law: obviously what activities are crimes determines the issues on which the criminal justice system can act. But this is not our main concern here.

• rules of criminal procedure: the legal rules that govern the working of the criminal justice agencies. These are the legal rules we focus on in studying how the system works. Issues include such questions as: what are the powers of the police as regards arrest, interrogation etc.? What rules govern interviews in the police station, what is the status of the right to silence etc. What are the rules of cross examination in court? What counts as legal proof beyond reasonable doubt. What are the powers of judges and magistrates? What are the procedures for complaint if these rules have been apparently violated? This leads to the issue of due process versus crime control

Due Process and Crime Control

One of the most important feature of the criminal justice system is that it is expected to pursue two equally important goals: delivering justice and delivering the effective control of crime.

The work of many public bodies involves issues of justice and civil rights. For example the primary purpose of a hospital may be considered as that of delivering effective health care. But there will be issues of justice internal to the working of the organisation such as: the entitlement of patients to information about their condition and the likely consequences of a particular treatment before they agree to it. Also on a wider level the granting of access to effective health care to all sections of society may be considered an issue of justice. Nevertheless, when those issues have been taken into account the actual day to day working of the hospital is concerned with efficiency and effectiveness. If we are watching an operation for example our only concerns are one's of effectiveness: is the surgeon sufficiently trained, does the anaesthetist know what they are doing, is the right equipment available?

When we are watching a criminal court at work our concerns may be much more focused on whether what is taking place is in accordance with justice rather than simply 'is this an efficient trial?' Indeed the word efficient would seem out of place when applied to such an event. Our overriding concern would be to see that justice was being delivered. To talk about efficiency in such a context we would be asking questions like: 'Is this trial too long?' How much taxpayer's money does it cost?' Of course there is not an absolute opposition between justice and efficiency. An efficient criminal justice system convicts the right offenders, i.e. people sent to prison are the ones that actually committed the crime in question. A criminal justice system that is fair and just would have the same effect, only the guilty would be convicted and sentenced. So what is all the fuss about? Consider the chart below which gives some examples of the contrasts between a Justice perspective, or 'due process' as it is often called, and an effectiveness and efficiency perpective. These are questions of emphasis but they are very important differences. In the chart below some characteristics of each orientation and some arguments in support of them are briefly noted. The purpose here is just to illustrate the 'flavour' of each orientation. The issues will be discussed in more detail later. What practical differences do you think these orientations make as goals for the criminal justice system?