Comparative Criminal Justice

Making Sense of Difference

David Nelken

• Publisher: SAGE Publications Ltd
• Year: 2010
• Print ISBN: 9781847879370, 9781847879363
• eBook ISBN: 9781446241813
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

David Nelken is the 2013 laureate of the Association for Law and Society International Prize

 

The increasingly important topic of comparative criminal justice is examined from an original and insightful perspective by David Nelken, one of the top scholars in the field. The author looks at why we should study crime and criminal justice in a comparative and international context, and the difficulties we encounter when we do.

 

Drawing on experience of teaching and research in a variety of countries, the author offers multiple illustrations of striking differences in the roles of criminal justice actors and ways of handling crime problems. The book includes in-depth discussions of such key issues as how we can learn from other jurisdictions, compare ?like with like?, and balance explanation with understanding – for example, in making sense of national differences in prison rates. Careful attention is given to the question of how far globalisation challenges traditional ways of comparing units. The book also offers a number of helpful tips on methodology, showing why method and substance cannot and should not be separated when it comes to understanding other people?s systems of justice.

 

Students and academics in criminology and criminal justice will find this book an invaluable resource.

 

 

Compact Criminology is an exciting series that invigorates and challenges the international field of criminology. 

 

Books in the series are short, authoritative, innovative assessments of emerging issues in criminology and criminal justice – offering critical, accessible introductions to important topics.  They take a global rather than a narrowly national approach.  Eminently readable and first-rate in quality, each book is written by a leading specialist.

 

Compact Criminology provides a new type of tool for teaching, learning and research, one that is flexible and light on its feet. The series addresses fundamental needs in the growing and increasingly differentiated field of criminology.

 

ONE

why compare?

It may be easy enough to find striking examples of differences in criminal justice, but what is less clear is how these can contribute to make up a coherent subject matter. What is the comparative analysis of criminal justice (good) for? In this chapter I first describe some of the theoretical and policy goals of this subject and how the literature seeks to contribute to them. I then go on to discuss how far this sort of work can overcome the risks of ethnocentrism and relativism.

The goals of comparative criminal justice

There are a variety of theoretical and practical reasons for wanting to know more about what others do about the sanctioning of offensive conduct (Nelken, 1994b, 2002). Whatever misgivings they may have about how their own system works, many people are even more suspicious of what goes on when their fellow citizens end up being tried in courts abroad. Such ethnocentric thinking can easily lead people to assume a priori that their own local arrangements must be superior in general, or at the very least better fitted to their own society. But, fortunately, there are also those who have a more open-minded interest in apparently strange ideas and practices, seeking to make sense of rather than reject difference outright.

Many writers seek to learn from other systems how to improve their own. Hence we get articles with titles like ‘English criminal justice: is it better than ours?’ (Hughes, 1984), or ‘Comparative criminal justice as a guide to American law reform: how the French do it, how can we find out and why should we care?’ (Frase, 1990). Those who undertake studies of this kind seek to borrow an institution, practice, technique, idea or slogan so as to better realise their own values, or sometimes to change them. They may aim to learn from those places with high incarceration rates what not to do, or they may seek to help others change their systems, for example exporting new police systems to South Africa, or restoring the jury system in Russia. Or again they may just be concerned to cooperate and collaborate in the face of ‘common threats’.

But the practical importance of this subject brings us up against one of the most troubling of questions regarding the goals of our comparisons. How far are we intending to learn more about our own system and its problems, and how far are we trying to understand another place, system or practice ‘for itself’? For some authors, we can choose between seeking for ‘provincial’ or ‘international’ insights, or engaging in ‘national’ or ‘cosmopolitan’ enquiries (Reichel, 2008; Zimring, 2006). For reform purposes, comparative researchers deliberately use accounts of practices elsewhere as a foil. Lacey (2008), for example, deploys evidence of differences in prison rates in Europe so as to prove that growing punitiveness is not the only game in town and suggest to UK politicians that they can find a way out of outbidding each other on being ‘tough on crime’. In other cases, we may set out to understand the other but end up knowing ourselves. As T.S. Eliot (1943) put it:

the end of our exploring,

Will be to arrive where we started,

And know the place for the first time.

What, on the other hand, could it mean to try to understand another society only in ‘its own terms’? Even the society being reported on is likely to understand itself in relation to points of similarity and difference in relation to some places (those to which it compares itself) rather than others. To a large extent it is impossible to make sense of things except against some background of previous expecta tions. Someone from India will find Italian criminal justice relatively efficient; someone from Denmark is unlikely to do so. Any cross-cultural comparison emerges from a given cultural context and has to be able to make sense to the audience(s) for whom it is intended. What is found interesting or puzzling will vary depending on local salience. But even questions couched in terms that are salient in both (or more) cultures being compared will lead to different answers depending on which culture one starts from. Reichel (2008) begins his book with the dilemma faced by US police agents, who feel justified to continue to pursue a criminal who has fled to Mexico because the police there are notoriously corrupt. He admits that the Mexican government might feel differently about such conduct. But one would imagine a rather different take on the topic in a textbook written for Mexican students.

Should we then say that what is crucial in studying another place is less whether the author has actually got it ‘right’ and more what the author makes of it? Balvig, for example (1988), tells us that his aim was less to learn about somewhere else than to understand his own country better. Perhaps this is all that ‘learning’ from others means (and can mean)? Does it even matter if, according to Johnson (2001), Braithwaite may not have properly grasped the Japanese criminal justice practices he used as a model for his highly influential idea of ‘reintegrative shaming’ (Braithwaite, 1989)? Taken too far, however, this line of argument becomes self-defeating. The reasons we make comparisons cannot provide the only criterion of success. If we have failed to properly understand another system we can hardly make use of ‘it’ to throw light on our own arrangements. Even if there is no view from nowhere, this does not prove that all starting points are of equal value. And seeing only what is useful for us is a poor way of acknowledging and engaging with the ‘other’.

We also have to ask what, if anything, is specific about this subject. It has been forcefully pointed out that all social science is concerned with explaining variation and difference (Feeley, 1997). Comparison was central to the work of both Durkheim and Weber, albeit with rather different strategies. Many would say that comparison is the essence of all social enquiries or even of logical enquiry in general. In principle, then, no line can or needs to be drawn between criminal justice and comparative criminal justice (or between criminology and comparative criminology). In addition, the traditional focus of what is called comparative criminal justice on different national jurisdictions is mainly a matter of political/legal convention and methodological convenience. There are considerable political, social and cultural differences within modern nation-states, for example within the USA (Newburn, 2006), or Australia (Brown, 2005), and even more so in less industrialised societies. For some purposes other ‘units’, such as towns, organisations and professional groups, can all provide occasions for comparison. And transnational crime activities and responses to them help transform and transcend differences between units defined as nation-states.

The local, the national and the international often interpenetrate. But there may sometimes be good reasons to privilege the nation-state or societal level. States are the locus both for collecting criminal statistics and for administration, and their boundaries often, though not always, coincide with contrasts in language and culture. Franklin Zimring, a distinguished American criminologist, explains that he became a ‘convert’ to comparative criminology when discovering that Canada had not shared the rise in US prison levels even though its crime rate was not much lower than in the USA, with the exception of homicide and life-threatening robbery (Zimring, 2006). As this example also shows, some of criminology’s major debates now involve issues of comparative criminal justice.

Cross-national and cross-cultural research is a fundamental way to show whether criminology’s claims are more than local truths (though it does not exhaust this task, in so far as taken-for-granted starting points are also conditioned by other factors, for example gender). But this subject offers a number of other potential benefits (and challenges) that go beyond simply adding to the pool of potential variables that can be used in building criminological explanations. Trying to understand one place in the light of another allows us to move closer to a holistic picture of how crime and its control are connected (what do they know of England who only England know?). For example, it may help us understand the factors that explain why a given society goes through cycles of corruption and anti-corruption. Likewise, it can help us appreciate why reforms that are limited to those that emerge from within the same society often tend to reproduce the problems they are being asked to solve – precisely because they come from the same culture.

In England and Wales, as in the Netherlands, the answer to failures in the system is normally thought to be greater efficiency and speed (as in reforms of the English Youth Justice system inspired by the reports of the Audit Commission). In Italy, a rethinking or defence of ‘values’ is more often invoked as the way forward when problems arise (thus the ‘obligatoriness’ of prosecution decision-making is usually argued about as an issue of principle rather than as a question of learning from the ‘best practices’ of prosecutors as they struggle to deal with this demanding requirement (Nelken and Zanier, 2006)). ‘Governing through crime’ may be a particularly American obsession, but suggesting that it be replaced with the metaphor of the fight against cancer still remains firmly within the American ethos of instrumental problemsolving (Simon, 2007). Miscarriages of justice arise both in more adversarial and more inquisitorial types of process. But in each case it is their tendency to count too much on the strengths of their procedures that danger lies (Brants, 2010).

Comparative study can help us escape from such self-sealing cultural logics (Field and Nelken, 2007). There are a variety of strategies that can be used. But each is also subject to pitfalls. Classifications can be controversial, descriptions deceptive, explanations erroneous, interpretations interminable, translations twisted, and evaluations ethnocentric. The difficulties multiply in so far as a satisfactory account of difference usually requires the ability to draw on more than one of these strategies. But the message of this book is that considerable progress can be made in understanding and explaining other systems of criminal justice if (but only if) we face up to these challenges.

Collecting data on legal rules, procedures and distinctive institutions is certainly a valuable first step (one that is both demanding and time-consuming, not least because of linguistic and conceptual difficulties). It can be instructive to learn about the social role of policemen in Japan (as well as the lesser known system of voluntary probation officers), or discover that the way chosen to stop traffic policeman in Mexico City taking bribes from motorists was to appoint less threatening women rather than men to do this job. Careful description can also help get beyond often out-of-date classificatory stereotypes. In many respects, the Netherlands has more similarities with the UK than with Italy, even though the UK has a common law rather than continental system of criminal justice. But the task of comparativists, unlike that of lawyers, cannot be that of providing description for description sake. Even the effort to describe selected aspects of criminal procedure in Europe runs to over a thousand pages (Delmas-Marty and Spencer, 2002).

Descriptions can provide the basis for explanation and understanding, but for them to serve this purpose we must have an understanding of the way the ‘law in action’ relates to the ‘law in books’. This essential working tool for all social studies of the law was in fact first put forward in the context of studying police (mis)use of criminal procedure. Likewise, the distance between what continental systems of criminal justice claimed to be doing and what research into the law in action showed they were actually doing was the nub of the classical debate about ‘the myth of judicial supervision’ in continental criminal procedure (Goldstein and Marcus, 1977). The leading recent empirical in-depth study of French criminal justice, by Jacqueline Hodgson, also places stress on how little actual supervision of police is exercised by continental prosecutors (Hodgson, 2005). On the other hand, if we are worried that some criminal justice systems allow the state to use psychological pressure against defendants (Vogler, 2005), a closer look at what goes on in police cars will quickly show us that this is not a problem restricted to the inquisitorial system.

Empirical research has shown that it was rarely necessary to pass ‘telephone justice’ messages to judges and prosecutors to ensure politically appropriate outcomes of trials in communist East Germany. The methods used to appoint and socialise recruits to these offices was sufficient (Markovits, 1995). More recently, by contrast, corruption investigations in post-communist Poland were themselves used ‘corruptly’ against political adversaries under direct government impetus (Polak and Nelken, 2010). As this suggests, rules and safeguards can even operate in ways that are the opposite of what are said to be their justifications. The procedures in Italy that are supposed to protect offenders’ rights to know as soon as possible that they are being prosecuted (the avviso di garanzie notice) ends up having the effect of facilitating ‘trial by media’ (Nelken and Maneri, 2000).

Paying attention to the ‘law in action’ is also relevant to making sense of all three of the running examples being used in this book. The reason why young people in Italy, in some respects, ‘get away with murder’ is that the 1989 reform of juvenile justice was a procedural one brought in at the same time as the introduction of the major procedural reform in that year for adults. It did not change the substantive penalties on conviction available for serious offences by young people, which remain (in this country where children are so much loved) only prison. The two most important new measures that were introduced – ‘irrelevance’, for cases that were deemed too trivial for further prosecution (an essential filter in a regime of obligatory prosecution and one not yet available for adults), and ‘putting to the test’ (messa alla prova), a type of probation with in-built requirements of work, schooling etc. – had therefore to be pre-trial procedures – ways of putting off and avoiding trial. It is because messa all prova is available for all crimes that prosecutions for murder often end up without going to trial provided the conditions of pre-trial probation measures have been successfully met.

Likewise, to make sense of obligatory prosecution, it is necessary to learn how Italian prosecutors actually behave, given the impossibility for handling all the cases on their desk simultaneously. Who or what is it that de facto decides priorities – the prosecution office or the single prosecutor – and on what grounds? The rule of obligatory prosecution can in practice strengthen the hands of prosecutors who give priority to some classes of cases rather than others (Nelken, 1997b; Nelken and Zanier, 2006). Finally, to understand the times taken by trials, it is vital to appreciate the workings of the system’s own cut-off points for undue procedural delay. This so-called period of prescription, within which a case must run its course, applies right up until the hearing of appeal in the final court, after three stages of trial and any number of possible procedural objections. So defence lawyers often try less to prove their client’s innocence than to make the case overrun it’s allocated time.

For many criminologists, the main interest of comparative criminal justice lies in the help it affords for formulating and testing explanatory hypotheses about levels of incarceration rates, the retention of the death penalty, or whatever. Those looking for explanations of differences in criminal justice practices that translate quickly into policy arguments may be disappointed, however. Asking which penal disposal is better at reducing crime turns out to be more complicated than ever when asked across a range of countries, many of whose criminal justice systems seem to give low priority to this goal. We first have to understand why that should be the case. It has been argued that even countries like the USA, which claim to be most concerned with reducing recidivism, are less concerned with crime in its own right than with larger issues of social and moral discipline (Simon, 2007). And critics of penal policies may likewise be as interested in wider questions of how to create a better society as they are in crime rates as such. In this field explanatory and evaluative issues, what works and what is right, are rarely easily separated.

Those with a normative agenda may seek to assess criminal justice systems as a whole. Is the problem that too many people are being sent to prison, or too few, or does all depend on which offenders we are speaking about? There are also interesting differences between criminal justice systems in what kind of evaluation, if any, is seen as appropriate for different actors in the system. Should judges be evaluated, by whom, for what conduct, and for what purpose? (Mohr and Contini, 2008). More commonly, commentators examine what goes on at a given ‘stage’ of criminal justice, or in one of its constituent organisations or networks. But because criminal justice practices are sites for contesting values, in order to make sense of what criminal justice agents are trying to do, we need to make sense of their normative commitments and will often be providing contestable interpretations of their behaviour.

In Anglo-American systems, for example, it is debatable and debated when plea bargains are to be considered the result of unfair pressures. Getting our normative bearings can be even more difficult in unfamiliar contexts. In Italy, some judges in corruption cases imprison those who refuse to confess, arguing that extracting a confession is the only certain way they have of being sure that the offender will no longer be trusted by his associates (and so be unable to repeat the offence). But many commentators see this as an abuse of criminal procedure. Should ‘we’ take one side or the other (and who are ‘we’)? How much allowance should be made for the larger context of political corruption in which judges find themselves, or for particular historical circumstances such as those that characterised the Tangentopoli anti-corruption investigations (Nelken, 1996, 1997b)?

Beyond ethnocentrism and relativism?

To make progress both in learning about and evaluating other systems of criminal justice we need to bear in mind two dangers. On the one hand, there is the risk of being ethnocentric – of ‘confusing the familiar with the necessary’. Here we fall into the trap of assuming that the links between social factors, crime and criminal justice that we find persuasive are also ones that apply generally, and that what we do, our way of thinking about and responding to crime, is universally shared, or, at least, that it would be right for everyone else. Alternatively, there is the temptation of relativism. Here the claim is that we can never really grasp what others are doing, or that there can be no transcultural basis for evaluating whether what they, or we, do is right (see, for example, Beirne, 1983/1997; Leavitt, 1990/1997; Cain, 2000b; and Sheptycki and Wardak, 2005).

For some leading post-war authors the point of comparative work was precisely so as to ‘uncover etiologic universals operative as causal agents irrespective of cultural differences between different countries’ (Szabo, 1975: 367). The search for such generalisations continues. Authors seek to show that certain social groups or categories tend to be more punitive than others, or that similar forms of criminal conduct are, as a matter of fact, universally disapproved to similar degrees. Claims are made that, cross-culturally, people have similar preferences for fair trial processes and shared intuitions about how institutions such as the police must behave if they are to be considered legitimate (Lind and Tyler, 1988). A well-organised criminal justice state that reflects such public preferences is seen as the best way of helping victims of criminal behaviour (Newman, 1999).

The currently renewed interest in establishing and spreading ‘evidence-based’, transcultural knowledg...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Acknowledgements
• Introduction: changing paradigms
• Chapter 1 Why compare?
• Chapter 2 Just comparison
• Chapter 3 Ways of making sense
• Chapter 4 Explaining too much?
• Chapter 5 The challenge of the global
• Chapter 6 Whose sense?
• References
• Index