What is wrong with the Criminal Justice System? First of a Series
by Brian Risman, Publisher, www the law journal co uk - April 10, 2002
Refer to Article 2 of the Series
Sir John Stevens, the Commissioner of the Metropolitan Police, argued in a recent speech that misconceptions regarding criminal trials, plus the power of organised crime, is degrading and corrupting the criminal justice system. Instead of serving the community by convicting the guilty and protecting the victims, the criminal justice system is dominated by wily defence lawyers, indifferent judges (and court staff), and defendants who bully witnesses and indeed the court itself. Public confidence is thus eroded in the system.
That is one view. An opposite view is the problem of wrongful convictions. A spate of wrongful convictions in Canada has resulted in judges in some jurisdictions being sent on a 3-day course on 'avoiding wrongful convictions'. Why have these convictions occurred? Four factors have been identified:
An additional factor in wrongful convictions is the tendency, particularly in high profile cases, of the press, police, and publicity-seeking public figures, to convict the accused prior to trial.
As expected, comments on both sides of the debate are plentiful. Some of the critics of Sir John Stevens suggest that social action is the best approach in cutting crime, so that the issue of criminal justice never comes up, since crimes will not be committed. Job creation is an excellent example of that approach. The problem, of course, is that organised -- and even 'disorganised', that is random -- crime is not affected by job creation. Gangs terrorising neighbourhoods are not impressed by flower-planting and make-work programmes. The issue of the criminal justice system is therefore not addressed. Crimes will still occur and the criminal justice system will still have its problems.
The other view, dealing with wrongful convictions, is equally as serious. When people sit, wrongly convicted, for 15 years, major miscarriages of justice occur. It seems that Sir John's approach could lead to the Canadian situation, where instead of the guilty going free, the innocent are convicted.
Another factor influencing the system is public opinion. The courts have a difficult balance to achieve - while the courts should not be controlled by public sentiment, neither should they lose the confidence of the population.
Let us look now at another country, the United States of America. When the current President, Mr. Bush, was Governor of Texas, that State had an incredible record of executions. Yet I didn't see crime, or more the fear of crime, decrease. The streets of Texas cities are empty even at midday due to concerns with crime. I have seen this situation in Houston and Dallas. You cannot find people out at night walking around. Instead, they live, if they can afford it, in 'gated communities'. Now it is equally true that Texas has a strong 'gun culture'. However, no one doubts that hardened criminals in any jurisdiction can obtain the firepower they want.
Equally, liberal approaches to crime, such as that of Mr. Lionel Jospin's government in France, have resulted in the police unwilling to enter certain neighbourhoods and uncontrolled street gangs burning automobiles and lorries.
Do you notice something interesting with these examples? Whether the criminal justice system is restrictive or permissive, gang violence is rampant since the public order establishment (not just the police) have not addressed the situation by eliminating the gangs. Is that the answer? Would that return order and public confidence?
Should the goal of the criminal justice system be the conviction of the guilty? Or fair trials for all? Or the elimination/ reduction of crime? For if the guilty are convicted, with no reduction in crime and improvement in the quality of the lives of the populace, what purpose is served by that approach? Equally, if fair trials are the goal, and crime still dominates, there will be no public satisfaction or confidence. On the last point -- how can the criminal justice system act to reduce or eliminate crime? Make examples as in a Singapore-style justice system?
Is the problem in the criminal justice system at all? Could it be in the social structure of the country -- whichever country -- that perpetuates fear and injustice?
More on this issue next week. If you have any comments or an article on this issue, please feel free to e-mail me. I would be pleased to publish responses, whether in support or rebuttal.