1st Principles: Criminal Justice

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1st Principles:

JUSTICEVictor Finkel


Topics:

• That we should elect our judges• That we should bring back the death penalty

• That we should have mandatory sentencing for repeat offenders

• That we should abolish trial by Jury• That paedophiles should be forced to wear tracking devices

• That we support at-home detention for juvenile offenders


The CJS

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Define Crime

Investigation

Ascertain Guilt

Sentence

Legislature

Decide what is a crime by making law

- - Sets parameters within which judges can decide

Police - Identify potential breaches of the law

-

Judiciary

Sometimes interprets the law when it is not clear

- Determines if a breach of the law occurred

Decide on appropriate application of penalty range


AIMS of the CJS

• Prevent Crime• Make Society Safe


AIMS of the CJS

•Punishment / Retribution – of the criminal / for society & the victims

•Protection of Society – From repeat offences

•Deterrence– Of similar acts

•Rehabilitation– Of the criminal

PROPORTIONALITY

•A useful concept for examining these with reference to other legislation


Balancing the Aims

•Do the Aims ever Clash?


Balancing the Aims (2)



• What about the Dealth Penalty?

• Reality of Deterrence is that it is limited– Rationality– Incrementally Different



• Most debates about Criminal Justice are about balancing these aims.

• This means– showing the impact of the policy on each of the aims AND

– Explaining which particular aims are more important in this case and WHY.

• Eg: “That convicted paedophiles should be forced to wear tracking devices for the rest of their lives”


GOING TOUGH ON CRIME

• This section is about how to take the Punishment/Retribution and Protection side first and foremost.

• Two things need to be done:– Show why punishment is necessary

– Show why punishment is proportional and appropriate


The Rights of Criminals

• Criminals lose rights– Presion: Freedom of association, of speech, of movement, of voting (in some countries)

• Though no one loses all– Right of appeal, to a fair trial, adequate representation, freedom from torture

• How justify taking away? • Note: Once taken away, very few people out there advocate bringing them back!


Concept: The Social

Contract• Where do rights come from?• Social Contract Theory:

– Rights are a construct of a contract

– We give up rights to do whatever we want

– In exchange for protection from people doing whatever they want to us


Harsh Punishment:

Proportionality• Devastating Impact on Individual

Victims – Rape, Murder, Paedophiles

• How deal with offences such as Drug Trafficking, Property Crime, where impact on individuals may be lesser?

• Answer: Devastating Impact on Society• eg: “That we should have the death penalty for drug traffickers”


Harsh Punishment: Neccessity

• Establish a problem that needs fixing

• Issue: Crime rates are falling in most developed countries

• Answer? Lie? NO!• PUBLIC PERCEPTION


Public Perception

1. Feeling unsafe inhibits ability to excise rights

2. When justice appears inadequate people take justice into their own hands - Vigilantes

3. Concentrates crime due to demographic change (Sometimes)

- Broken Windows Theorye.g. New York


GOING SOFT

• How to focus on Rehabilitation

• Why matters?


Combating Perceptions

1. Numbers: Crime Rates are falling across Australia and most parts of the developing world

2. Soft: Prison population is rising and for some crimes incarceration rate is increasing. And not getting off lightly either - 96% of Murderers, average >18 years in jail

3. Judges out of Touch: When people know the full facts of the case, are often more lenient than judges - Melbourne Uni Study


Rehabilitation reduces

Crime!• It works - example: Victoria• It reduces suffering associated with future crimes

• Saves government extremely high costs of incarceration (people in prison)


We need Rehab to work!


Where does Rehab Work

Best?• How does Rehab work?

– Changing Mindset

• Where does this work best?– Prison programs– Diversionary Centres– Community Outreach


Factoid: SENTENCING

• Our system preserves significant judicial discretion in sentencing

• Safeguard• To meet aims of justice system, each person needs to be dealt with differently

• “Tough on crime, but also tough on the causes of crime.”

• Factoid-within-a-Factoid: Victim Impact Statements?


Factoid: LAWYERS

• The Australian legal system is ‘ADVERSARIAL’

• This means that judges and juries can only decide on what is presented to them in the court.

• Thus, Lawyers are crucial• There is such a thing as a good lawyer and bad lawyer -> what does this say about our Justice system?

• Alternative: INQUISITORY


Factoid: JURIES

• Most serious felonies are tried by Jury• Panel of 12 “Average Reasonable People” called to serve

• Panels are vetted by lawyers• Role of Judges:

– direct juries on matters of law and inadmissable evidence.

– Set the sentence

• Why do we have Juries?• Are juries an accurate reflection of society?


Factoid: LEGALISING vs DECRIMINALIZIN

G• LEGALISING

– Totally acceptable– No related offences– Benefits: Frameworks, government standards

• DECRIMINALISING– There’s not really a legal process– BUT, focus on the ‘actual’ criminals– Benefits: Keeps it illegal, but doesn’t stomp on the pawns

• Example “That we should decriminalise the act of prostitution”


Factoid: PRISONS

• Are prisons effective at Rehabilitating people?– Isolation from Society– Bad Influences


Factoid: YOUNG PEOPLE

• Minors are treated differently by the law– <10, cannot be criminally liable– 10-14 in between– 14 - 18 can be held criminally liable

• Emphasis on Diversion• Concept: Labelling• Juvenile Detention as Last Resort


Factoid: VOTING

• In Australia:– You cannot vote while in Prison– However, you can vote if you are a convicted criminal, just not in prison, or have been released

– Thus, whether you lose the right to vote or not is up to random chance for shorter gaol sentences.

• In America– ?


Factoid: POLICING

• Significant operational discretion is utilised

• Why? • Harms of Discretion• Zero Tolerance

• Community Policing


Factoid: HOW DO SOCIETIES

DECIDE WHAT IS A CRIME

• What constitutes a crime is a relative concept

• Between societies– There are some common crimes– There are some different crimes

• And some change with time• CLASH is UNIVERSAL RIGHTS vs MORAL RELATIVISM

1st Principles: Criminal Justice

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