Debates in Criminal Justice

Key Themes and Issues

Tom Ellis, Stephen Savage, Tom Ellis, Stephen P. Savage

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136640940
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

This innovative new book recognises that, while criminal justice studies is a core component of all criminology/criminal justice undergraduate degrees, it can be a confusing, overwhelming and a relatively dry topic despite its importance. Taking an original approach, this book sets out a series of ten key dilemmas - presented as debates - designed to provide students with a clear framework within which to develop their knowledge and analysis in a way that is both effective and an enjoyable learning experience. It is also designed for use by lecturers, who can structure a core unit of their courses around it.

Debates in Criminal Justice provides a new and dynamic framework for learning, making considerable use of the other already available academic key texts, press articles, web sources and more.

Part 1

Themes in Criminal Justice

1 Crime Control or Due Process?

Tom Ellis and Mike Nash

Introduction

What is criminal justice for? How does criminal justice function? This first, relatively simple chapter, starts by outlining the key features of a crime control model from the type of perspective that those who often advocate it adopt. You will find this type of argument most commonly in popular newspapers and media, but also to some extent among criminal justice professionals who work in agencies tasked with crime control, such as the police. This approach is then criticised and an argument is made that the due process model is the one on which criminal justice should be based. This view tends to be popular among academics and also those criminal justice professionals involved in the court process itself, such as probation officers. Having established the oldest framework for models of criminal justice, in the final section of this chapter, we broaden the focus to include other models and explanations. As we note throughout the text, it is important for you to use the debate format as the framework from which to develop your understanding and it is important to use the final section, and the additional reading suggested there, to gain a full understanding of the key issues. By the end of working through this chapter, you will therefore: be familiar with the key models of criminal justice, be able to distinguish between them, and will have developed a critical understanding of their uses.

For those of you who have already covered the basic structure of criminal justice in England and Wales, and relationships between the various agencies involved, it would be better at this point to read:

• Newburn, T. (2007) Criminology. Cullompton: Willan, pp. 542–57.

An alternative, but now somewhat dated source is:

• White, R.C.A. (2002) ‘The structure and organization of criminal justice in England and Wales: an overview’. In M. McConville and G. Wilson (eds) The Handbook of Criminal Justice Process. Oxford: Oxford University Press, pp. 5–21.

A more basic but up-to-date source is:

• Blake, C., Sheldon, B. and Williams, P. (2010) Policing and Criminal Justice. Exeter: Learning Matters Ltd, <http://www.learningmatters.co.uk>

The latter book has the advantage of being written since the division of responsibilities between the Home Office and the newly created Ministry of Justice has made the picture a little more complex. If you need to understand this in more detail, the following sources will be very useful:

• Ministry of Justice (2009) ‘Business Model’. London: Ministry of Justice, <http://www.justice.gov.uk/publications/ministry-of-justice-business-model-2009.htm>

The first 21 pages are a useful exposition of what the MoJ says it is for and how it will go about it.

• Ministry of Justice Corporate Plan 2009–11. London: Ministry of Justice, <http://www.justice.gov.uk/publications/docs/corporate-plan-2009-11.pdf>

In Support of Crime Control

It is hard to find much support (as opposed to critiques) among academic criminologists for a crime control approach, perhaps because their livelihoods depend on significant levels of crime! However, a crime control approach is very well supported in the popular press, particularly tabloid newspapers, which after all form the bulk of what the public reads. It seems clear that the current criminal justice process was designed for the much lower level of crime that existed in the past and is too bureaucratic, time-consuming and inefficient to deal effectively with the sheer volume of crime that now exists. If a law-abiding member of the public becomes a victim of crime, they find themselves lost in a legal process that values the rights of the suspects above the rights of those who have been wronged.

Crime Control – A Popular Press Example?

Your house is reduced to a wreck. Your family treasures are trashed, your doors and windows broken, your money and valuables stolen … You may never again feel at ease in your own home.

Only the victims can fully understand the shock and misery of being burgled … For that reason, prison has always been considered the appropriate penalty. No longer. A drug addict who committed 18 breakins over seven months walked grinning from court.

The message could hardly be more damaging. The fact is that burglars are hardly ever caught.

Now, even the ones who are caught won’t be jailed. It is almost as if they are being encouraged to rob [sic].

Lord Woolf says he wants to reduce overcrowding and that prison does nothing to reform burglars.

In a Britain where police so seldom manage to catch thieves, where witness intimidation is almost routine and where the legal system increasingly seems impervious to common sense, Lord Woolf has confirmed his reputation as a man more concerned about the welfare of criminals than the plight of their victims.

(Daily Mail, Saturday, 21 December 2002, p. 12)

It is clear that there is a frustration here with a system that is designed to ensure the rights of the offenders, but is not really concerned about the victims.

More Examples

• ‘Ex-New York cop sacked from probation service for putting public safety first’, Daily Mail, 5 June 2006, <http://www.dailymail.co.uk/news/article-389092/Ex-New-York-cop-sacked-probation-service-putting-public-safety-first.html>

See also:

• ‘Convicts who have killed on probation’, Daily Mail, <http://www.dailymail.co.uk/legacygallery/gallery-7656/Convicts-killed-probation.html?selectedImage=67179>

This will also be relevant when reading the chapter on victims’ rights and suspects’ rights.

The overwhelming idea is that criminal justice should have crime control as its main aim.

What is Crime Control?

The crime control model is about focusing the purpose of the criminal justice process on the demands of the majority of citizens who are law-abiding. Under these conditions, criminal justice is about the efficient control of crime.

Task

• Read: Davies, M., Croall, H. and Tyrer, J. (2010) Criminal Justice: An Introduction to the Criminal Justice System in England and Wales (4th edn). London: Longman, Chapter 1.

Limit your reading to these two models at this point. Another basic introductory text that can be used is:

• Smart, U. (2006) Criminal Justice. London: Sage, Part Two, pp. 15–134.

Essentially there should be a unified or ‘joined up’ criminal justice system, where all parts of the system work in harmony to reduce or prevent crime and to apprehend, prosecute, convict and punish most, or all, of those who offend. In this way, the public are protected by reduction of crime, and effective detection and prosecution of those who do offend.

This model of justice accepts that there will be a few aberrant cases where the innocent are convicted, but this is justified by the utilitarian notion that crime control overwhelmingly achieves the greater good for the majority (see Chapter 5 on restorative and retributive justice and the other philosophies of punishment).

Task

How do we decide what is an acceptably small number of cases in which innocent people are wrongly convicted?

• Read: ‘The scales of injustice’ by Michael Naughton, Observer, 28 July 2002 <http://observer.guardian.co.uk/crimedebate/story/0,12079,764137,00.html>

Make notes for and against the crime control approach. You will also find a useful set of sources for further illustrative examples at the following website:

• <http://www.innocent.org.uk/misc/articles.html>

Inevitably, this system demands a high level of informal fact-finding, or, in other words, the case is dealt with outside of the formal court setting as much as possible. While the notion of due process presumes that the criminal courts will play a major role in examining the evidence and determining innocence or guilt, Skolnick’s 1966 classic text ( Justice Without Trial. New York: Wiley) outlines the way in which the police make many decisions about whether to proceed with arrest and the processes beyond that without the intervention of the courts.

Task

The up-to-date intricacies of this process in England and Wales are well summarised and argued in the following book:

• Cape, E. and Young R.P. (eds) (2008) Regulating Policing: The Police and Criminal Evidence Act 1984, Past, Present and Future. Portland, OR: Hart Publishing.

Ensure you are clear about why the Police and Criminal Evidence Act was necessary and note down how this might relate to notions of crime control and due process.

You should also ensure you read the chapter by Young on what he calls the ‘summarisation of justice’ and make notes on the extent to which you think this marks a shift toward a crime control model.

See also:

• ‘ “Police Justice” now deal with more crimes than the courts’.Guardian, 30 November 2007, <http://www.guardian.co.uk/politics/2007/nov/30/ukcrime.law>

The crime control model relies on:

• presumption of guilt – in contrast to the formal judicial process;
• recognition that victims should have more rights than the accused;
• belief that prison and other punishment must be unpleasant in order to work (deterrence);
• belief that sentences must be long to protect the public (incapacitation); and
• belief that keeping order on the street is more important than following the letter of the law.

Task

Make notes at this point on what you think the differences are between ‘law’ and ‘order’ and whether you think it is easy to strike the right balance.

Have a read of Skolnick and, if you wish to pursue this area in more depth, a good starting point is:

• Rosenfeld, Richard, Fornango, Robert, and Rengifo, Andres F. (2007) ‘The impact of order-maintenance policing on New York City homicide and robbery rates: 1988–2001’. Criminology, 45(2) 355–84.

Refine your notes on the basis of your reading.

The Rights of the Public and Crime Control

A crime control model is preferable for the majority of relatively powerless, law-abiding citizens, so that they can exercise their rights to walk the streets, relax in their own homes and leave their vehicles and/or businesses without the fear of crime and victimisation. It also means that most offenders will be caught, unlike under the current system where the detection and clear-up rates are extremely poor. Offenders will be seen to be punished (see Chapter 5, restorative justice and retribution and the other philosophies of punishment). Crime control will also ensure that: the public are protected from future victimisation by the same offender; members of the public will know when offenders are released; and offenders will know that they are being monitored so that they cannot offend again (see Chapter 10 on sex offender notification).

Round Up of Crime Control

The crime control model ensures that a civilised society can protect all of its citizens from victimisation by criminals. Those convicted, or even acquitted, of previous crimes, should remain as suspects for future crimes and, if arrested and found guilty again, they will receive much harsher sentences. The model rightly assumes that offenders’ rights are less important than victims’ rights and that justice is for the majority of law-abiding citizens, not for the minority of repeat offenders.

In Support of Due Process

Context

The highly politicised nature of crime causation and crime control means that great care needs to be taken with the administration of justice. It is a foolish person who believes that ‘the law’ stands outside of external influences, independent and aloof from pressure. These influences are invariably more vocal from the punitive side of the debate. It is much easier to stand up for the rights of victims than the rights of offenders and it will certainly gain more popular and media support.

Supporters of due process may well find themselves in a minority, labelled as being on the offender’s side, a bleeding heart that will be taken for granted. Crime control supporters on the other hand have the seeming weight of moral authority behin...