Discussion Relationship Between Crime and Justice

March 8, 2022
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Discussion Relationship Between Crime and Justice

Discussion Relationship Between Crime and Justice

1. What is crime? What is justice? What is the relationship between the two?

2. Describe the philosophical and practical differences beteen the due process and crime-control models.

3. How do the Uniform Crime Reports and the National Incident-Based Reporting System differ?

4. In general, how did the U.S. criminal law develop?

5. What legal elements must be present in order for an act to be labeled a criminal offense? Briefly explain each.

Criminal justice systems in developed Western countries are much alike in form, structure, and function. They encompass written criminal codes; professional police, prosecution, and judicial systems; and a variety of pretrial, community, and custodial corrections programs and institutions. Details vary. In most countries, judges and prosecutors are nonpartisan civil servants; in the United States and Switzerland, many prosecutors and judges are elected or appointed by politicians. Prosecutors in some countries are governed by the “equality principle,” in others by the “expediency principle.” In equality principle systems, prosecutors in theory do not exercise discretion and prosecute all cases in which they believe crimes can be proven. In expediency principle systems, prosecutors may choose whether to prosecute a case on the basis of a range of practical and policy considerations. English-speaking common-law countries operate “adversarial” systems in which lawyers for the state and the defendant present evidence and try to persuade the judge how to interpret and apply the law. Judges—and sometimes juries—in theory are blank slates and consider only the evidence presented and are mostly passive receivers of information. Continental European civil-law countries operate “inquisitorial” systems in which judges dominate the fact-finding and trial processes, and lawyers play less active roles. Nonetheless, at day’s end, in fundamental ways all systems are similar: defendants must be proven guilty beyond a reasonable doubt, and when they are, judges must determine an appropriate sentence choosing from a range of options that is much the same everywhere.

(p. 4) Juvenile systems vary more widely. Some countries including the United States, Canada, and England and Wales operate juvenile courts that are in effect criminal courts for young offenders, and many young offenders are transferred to criminal courts and sentenced as if they were adults. Some countries, most notably in Sweden and Finland and to a large extent in Belgium, do not have special courts for juveniles, and set the age of criminal responsibility at fifteen (in Belgium except for homicide, eighteen). This means that criminal or juvenile courts have no role in responding to serious wrongdoing by young offenders; social welfare, educational, and mental health agencies must deal with them. Germany has special youth courts for young offenders up to age eighteen, young offenders may not be transferred to adult courts, and most eighteen- to twenty-year-olds are handled as if they were younger than eighteen. In New Zealand, almost every young offender must be dealt with by a restorative justice-style conference either to determine the punishment or to recommend the punishment to the judge. In Scotland, “children’s hearings” operate instead of juvenile courts and are by law directed not to punish wrongdoing but to look for resolutions that will promote the child’s welfare.

Discussion Relationship Between Crime and JusticeAlthough the broad outlines of criminal justice systems are much the same, there are important differences in detail. This handbook deals mostly with the American criminal justice system. It is important, however, to remember that American approaches, policies, and institutions are not the only, or often the best, ways to address particular issues or problems.

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In three respects the American system is unique. The first is its acute politicization. Since the mid-1960s crime and punishment have often been treated as major ideological and partisan issues in American elections (Beckett 1997). Candidates have regularly run for office accusing their opponents of being “soft on crime” and promising to adopt harsher policies or to apply existing policies in harsher ways. Candidates for election as county prosecutors have been especially prone to do this, but some candidates for judgeships have done it too. This stands in stark contrast to other developed countries. Nowhere else but in Switzerland are judges or prosecutors elected—they are usually career civil servants—and in Switzerland they act as if they were nonpartisan civil servants. And in no other country but England and Wales did crime and punishment become major political issues on a continuing basis in elections for legislatures and executive branch positions such as president, governor, or mayor (Tonry 2004a, 2004b). A major consequence of these differences is that American judges and prosecutors often take public opinion, or their personal re-election prospects and political self-interest, into account in setting policies or in making decisions about the handling of particular cases. In other countries, doing either of those things would be seen as unethical and inconsistent with judicial system officials’ obligation to consider each case impartially, strictly on its own merits, and not to be influenced by extraneous considerations.

The second major difference, a consequence of the first, is that compared with other developed countries American legislatures have enacted laws of unmatched (p. 5) severity, or that are unprecedentedly insensitive to the interests of alleged and actual offenders. One notable example of notoriously severe laws is California’s three-strikes-and-you’re-out law, which requires a minimum prison sentence ranging from twenty-five years to life following conviction for the third time of a felony—no matter how minor (Zimring, Hawkins, and Kamin 2001). Twenty-five other states have three-strikes laws. No other Western country has anything comparable. Another example are life-without-possibility-of-parole laws (LWOPs)—most states have them—which mean what they literally say and have been applied to offenders as young as twelve. A few other countries have such laws, usually very narrowly defined, and affecting a handful of prisoners. In 2008, 41,000 people were serving LWOPs, 7,000 of them for offenses committed by people who were minors at the time (Nellis and King 2009). A third example is the proliferation since 1970 of mandatory minimum sentence laws, which require imposition of designated minimum prison sentences, sometimes of a few years’ duration but often measured in decades. Only a few other countries have such laws, and the sentences they mandate are much shorter than in the United States (Tonry 2009).

Discussion Relationship Between Crime and JusticeThe most notable laws insensitive to offenders’ interests involve voting, other disabilities of current and former prisoners, and sex offenders. The United States is one of a handful of countries that forbid current and many former prisoners to vote; forty-eight of the fifty American states do not allow prisoners to vote, and many deny the vote to all or most former prisoners and to people on parole (Manza and Uggen 2006). Most other countries—England and Wales is a major exception—set up polling booths within prisons and allow all former prisoners to vote. While in prison, American inmates are denied Social Security benefits to which they would otherwise be entitled. They also are denied access to federal social welfare programs—conspicuously to federal student loan and grant programs that might enable them to obtain job skills or college educations, which would make going straight after release more likely. After release, many states make ex-prisoners ineligible to practice many professions and trades, including such improbable ones as being a hairdresser or a plumber. Throughout the United States “Megan’s Laws” require convicted sex offenders to register with the police and make knowledge of where they live publicly available. Many forbid prisoners to live in particular places. This often has the effect in some cases of making it impossible for them to live anywhere in entire towns and cities (Wright 2009). “Dangerous offender” laws in some states allow states to continue to imprison sex offenders and some violent offenders after their prison terms have expired. No other country has anything like Megan’s Laws’ registration and notification requirements, and only a few—again England and Wales is the major exception—allow confinement of dangerous offenders after their prison terms have been completed.

The third major difference is that American punishments are far harsher than those in other Western countries. No other country retains capital punishment or regularly uses LWOPs or lengthy mandatory minimum sentence laws. As a result, (p. 6) the U.S. imprisonment rate of nearly 800 per 100,000 residents dwarfs imprisonment rates elsewhere. Rates in Scandinavia vary between 60 and 75 per 100,000 residents, rates in most Western European countries (e.g., Belgium, Germany, France, Italy, the Netherlands) are around 100, and rates in other English-speaking countries range between 100 and 150 (International Centre for Prison Studies 2010).

When all those things are put together, it can be seen that the American criminal justice system is structurally similar to those of other Western countries, but the punishments it imposes are often vastly harsher. A sizable literature has tried to explain why (e.g., Garland 2001; Tonry 2004b; Simon 2007). Higher crime rates and harsher public attitudes are not the answer; U.S. crime rates other than for murder are no higher than in other Western countries and public attitudes are not harsher (Roberts et al. 2002). The most persuasive answers focus on the politicization of criminal justice policy, the influence of evangelical Protestant moral beliefs, and the history of American race relations (nearly half the people in prison and on death row are black, and nearly a quarter are Hispanic) (Tonry 2011).

Discussion Relationship Between Crime and JusticeThis chapter provides an overview of the American criminal justice system, though not in detail. Separate chapters in this handbook do that. Section I discusses patterns of crime and victimization rates and trends since the 1960s and 1970s. The most noteworthy trend is that crime has been declining—for most offenses substantially—since 1991. Section II describes the organization of the justice system. Section III discusses punishment patterns and trends. The most noteworthy are the extraordinary increase in imprisonment since 1973 and the overrepresentation of black people among prisoners. Section IV looks back on the earlier sections and tries to tie them together.

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