Inequalities within the 'Criminal JUSTICE System/Process'

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Inequality in the underlying ideology

Inequality in the definition of ‘the crime problem’

Inequality in practice in the CJS

Policy…Addressing inequality?

Ideological underpinnings:

Talk about JUSTICE.

In any society, actions taken in the name of the nation state need to be seen as ‘just’ in order to preserve legitimacy. When they are not seen as just then we get discontent and then often challenges to the authority of the state.

We could argue that in simple terms, society is held together in part, by a type of social contract whereby individuals agree to abide by state law in return for the protection of the state. In order for this to work however, the majority of people would need to believe both that the law is generally beneficial to them, and that the administration of the law is fair and just.

The presence of inequality in this process would suggest that some have a more fair and just experience than others, which is potentially problematic in as much that it causes dissatisfaction amongst some groups.

However, what do we mean by fair and just?

This might depend upon our perspective on what should shape criminal justice…How ideology penetrates the CJS.

Stepping back from the CJS

Gelsthorpe (2001 p105-6) suggests that there are six key competing  perspectives, which influence how the system is, or should be run. These  are:

Due process     Crime control     Welfare and rehabilitative     Critical socio-legal     Bureaucratic     Management

When we look at CJ policy we will see how these pervade that policy. Explain four most significant to this lecture.

Due Process: Associated with the Legal profession: ‘Formal equality before the law’

  • Justice should be administered according to publicly known legal rules and procedures, which must be seen as just.
  • The court should act as an impartial arbitrator of conflicts arising between citizens
  • There is a presumption of innocence, a requirement to seek a measure of judicial equality, and the restraint of arbitrary powers.
  • The innocent must be acquitted even if this means acquitting some guilty people in the process.

A type of criminal justice is based on formal objective judgements based upon known rules…Ideal that inequality should not exist.

In the next three perspectives we see that subjective judgements can come into play:

Crime control: Associated with attitudes if the police

  • The aim of the criminal court is first and foremost to repress criminal conduct, and is thus a guardian of law and order rather than of impartial justice.
  • The guilty must be convicted even at the risk of convicting some who are innocent and of infringing some civil liberties.
  • Formal rules and procedures are seen as obstacles standing in the way of convicting the ‘guilty’. (clever lawyers get the guilty off due to criminal procedures!)
  • Associated with a traditional conservative view of the function of the CJS.

Here we see the potential for inequality to creep into the CJS…clearly some types/groups of people are more likely to have their civil liberties infringed than others. As certain types are seen as problematic it becomes ‘just’ to infringe their liberties to convict the guilty. Eg Stop and search affects some groups more than others: Class, race, gender are important.

Example of crime control v due process

Metropolitan police commissioner Sir John Stevens (BBC News 6/3/2002), criticised lawyers who exploited loopholes and ‘shopped around’ for forensic experts who would support their cases, and said that Judges, defence lawyers and court administrators were shielding criminals by attacking witnesses characters and police procedures. He predicted civil unrest as a result.

Comments contradict assumption of innocent until proven guilty, and that just to suggest that where the police decides to arrest and charge, that the person is guilty is highly problematic. (see response from Michael Massey QC in BBC News 7/3/2002)

Welfare: historically associated with probation service

  • Based on the idea that we can restore the social health of any individual.
  • The aim of the CJS is not to deter or punish but to treat and cure people of their propensity to commit crime.
  • Based on idea that we can define the ‘criminal other’ by symptoms/characteristics.
  • Focussed on individual treatment, so would not aspire to equity in CJS, or inflexible rules and principles. 

Managerialism: civil servants those holding the purse strings!

  • Dominance of managerial values.
  • Crime is inevitable so what we need to do is manage it to make sure it causes as little damage to society as possible. This may involve assessments of risk and dangerousness.
  • Efficiency and cost effectiveness are paramount.
  • It is characterised by ‘performance indicators’, ‘quality service’, the creation of ‘partnerships’ and ‘what works’.
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Example of a mix of welfarism and managerialism and potential for inequality and discrimination:

Proposed policy on mental disorder from the 2000 white paper, relates to defining risk and predicting danger:

  • Compulsory procedures to ensure that certain patients living in the community take their medication. (cure by force!)
  • Indefinite detention for people deemed dangerous, with untreatable personality disorders, even if they had never committed a crime. (assumes that they have symptoms that we can universally recognise.)

(Carvel 21/12/2000 in the Guardian)

Problems about predicting potential criminality is that there is no accurate way of ...

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