How to Reform the Criminal Justice System - Coursework Example

A Critique of Current Government Proposals to Reform the Criminal Justice System Student Name: Instructor name: Unit Name: Date Introduction Many people in the country take the notion of Justice for granted; the significance and reality of it are perceived as the bedrock of the ‘British way of life’ and indistinguishable from the communities in which they reside. The assumption is that the criminal justice systems through the auspices of the police, courts, judiciary and other agencies automatically dispense justice (Cook, 2006). It is a government priority to ensure the safety and security of all honest nationals because that is their right. When those rights are violated, then the menace should be dealt with precipitately. Hence the inception of the criminal justice system; to penalize criminals, defend the citizenry and cut down on re-offenders. The Ministry of Justice, through its green paper of 2010, proposes to address these three issues by expostulating on how a structure designed to deal cleverly with the sentencing of criminals, when linked to a successful rehabilitative programme will halt the cycle of reoffending. The statistics are grim; even with a budgetary increase of 50%; half of those released from the penal system will re-offend within the year, as do three quarters of juvenile offenders. While much has been achieved, a lot more remains to be done even with the introduction of innovative measures. A number of concerns that have been identified include the financial cost of crime. Even with the reported fall in rate of crime towards persons and households, an estimated 36.2 billion pounds was spent in 2003, with the highest liability affecting the victim. There is also considerable strain on the court system with increased load on the probationary system, rise in prison populations resulting from lengthier sentences, reduction in early parole and longer period spent in prison as a result of revocation of parole. All this adds to expenditure in the system, especially in prison and criminal management (MoJ, 2010, 1). It is cost-effective to impose fines and create the opportunity for criminals to recompense their victims and the general community for the harm caused. Although they remain a common option, their use has declined especially for felonious offences. A simultaneous rise in community service instead has been observed as well as more severe penalties for indictable crimes. The use of rehabilitation is however minimal. The juvenile system however, makes greater use of out-of-court settlements. Detention of youth offenders has decreased and community service has increased. The majority of these turn out not to be career criminals although a small minority do – these are not adequately catered for within existing systems. There is a tendency to re-offend for those given custodial or community sentences, with those given the former having the highest rates. These juveniles do however suffer from other social challenges in addition to their criminal tendencies and this should be taken into account (MoJ, 2010, pg 1-2). While statistics show that the recorded levels of crime have decreased drastically since the mid-1990s, the fear of crime has not shown a concomitant reduction. Additionally, the rate of violent crime is higher than ever leading to a heightened awareness of anti-social behaviour and physical altercations in communities. The essence of society and social relationships continues to be affected by the insecurity engendered by crime and disorder. The Relationship between Crime and Risk. Existing punitive measures are heavily prejudiced by the risk found in the community. This risk has been found to be inherently linked to crime. This is by no means a universally accepted theorem (Kemshall, 2008). Background A substantial number of recent initiatives in Criminology are linked to a risk-infested crime policy (Feeley and Simon, 1994) yet historically, crime and risk go back a long time. Whereas it could confound the issue to look backwards, (Kemshall, 2003; Rigakos and Hadden, 2001), it may also assist in revealing various formulae previously used to resolve the situation; one which may tend to reincarnate in different forms at different times, but essentially is perennial. It has been noted by Thomas (2005) that; “Spectre of the individual dangerous person…first appears as nomadic figures which could threaten communities anywhere” This occurred as early as the early seventeenth century (p. 41), and manifested the appearance of the ‘Other’, depicted as both strange and risky. By the eighteenth century this ‘Other’ had evolved into the mentally challenged criminal from the vagrant and encompassed both adults and children condemned to the workhouse, the poor, dispossessed, orphans, predominantly Irish migrants as well as petty offenders. This was accompanied by the inception of ‘societal protection’ with guidelines and exceptions included from the beginning. Communal defence from those perceived to be menace to society, potential civic anarchy, corporeal injury, or crime was upended in the Vagrancy Acts of 1714 and 1744(Radzinowicz, 1948; Thomas, 2005). This resonates soundly with today’s community safety policies. In twentieth century United Kingdom, the criminal has been conceptualised in heterogeneous ways; predominantly characterised as an individual in dire straits, with shortcomings that require medical treatment or social recompense (Garland, 1985, 2001). A lot of the menace perceived was dealt with through mental health avenues, especially after the Second World War (Foucault 1965, 1973, 1977, 1978) and many so-called ‘moral degenerates’ and ‘incorrigibles’ were labelled as mentally unstable and detained. The ultimate goal of this strategy was reintegration and rehabilitation (Donzelot, 1980) but relapse was common. After the seventies this strategy was revised and a New World punitive imperialism was adopted in many Anglophile spheres of influence. These included ‘boot camp’, indefinite sentencing, compulsory life sentence, cognitive behavioural programmes, ‘three strikes and you’re out’ policies and actuarial jeopardy review, etc. During this time, there was substantial complication in the notion of criminality owing to the emphasis on ‘circumstancialisation’ inherent in the policies of neo-liberalism perpetuated that put emphasis on personal responsibility, and a distancing from public benefits. This was complemented by a zero tolerance attitude towards penalisation (Kemshall, 2008a). There was a shift from the established preoccupation with property crimes to crimes against persons. This culminated in the Floud report which advocated for pre-emptive incarceration for ‘menacing offenders’, this label based as much on the potential repercussions of the crime as on its nature (Floud & Young, 1981). This policy was considered justifiable in the United States as well as seen in Greenwood and Abrahamse (1982). In the new millennium, the justice system has evolved into a conglomeration of sometimes conflicting policies especially in juvenile situations. Reprisal, accountability, civil liberties, restitution and rehabilitation which tend to be both restricted and all-encompassing (Muncie and Hughes, 2002). Current Government Reform Proposals There is a substantial difference between the handling of youthful vs. adult offenders. The punitive measures taken against each group also vary. Incarceration for adults has shown an increase over the last two decades, with a concomitant increase in length of sentence. The numbers detained for violent or sexual crimes have also risen in addition to the severity of their sentencing. The annual incarceration statistics show that about a hundred thousand offenders are detained. Specifically, 100,190 persons incarcerated in 2009. Out of these, about two thirds, i.e. 64530 were given custodial sentences spanning less than a year. This figure represents about five percent of those sentenced by all courts during a year. The use of fines, as stated earlier, has declined considerably. Conversely, about half of the juvenile offenders are processed extra-judicially in out of court situations. A slight drop has been observed within the last twenty years in juvenile court disposals, with the detained population of this group being at its lowest for the last ten years. There has been a complementary rise in community service. The Home Office Strategic Plan of 2004-2008 gave a very pivotal place to dealing with anti-social behaviour (ASB). There is a lot of politics that surrounds the issue as it raises many questions on a legal and social level, especially the anti-social order itself (ASBO). There is a general perception of the narrow-mindedness of the ASBO politically, seen against the backdrop of the wider cultural repercussions (Squires, 2008) which include civilian and media outcry perpetuated through symbols of fear; the hooded ‘yobs’, etc which are integral to the situation. Glaringly absent from the conversation though, is any form of academic support in terms of research or data to validate the ASB approach, regardless of the government’s professed commitment to an evidence-led policy. The other notable silence in support of this policy is from agencies associated with crime prevention; that is, such entities as the National Association for Youth Justice or National Community Safety Network. The overall attitude is perceived to be that enforcement must remain a viable alternative or at worst, a last resort (House of Commons, 2005). The politics of antisocial behaviour has developed certain conjoined themes in the United Kingdom; there has been movement in the construct of the ‘politics of public order’ – the focus has shifted from acquisitive politics and wealth creation to a fixation on the anti-social behaviour of persons. This leads to a different spin being put on information disseminated and an eagerness to employ judicial means to deal with community troubles. It has been noted that the management of antisocial behaviour has seen the ‘decline of public policy to pest management’ (Davies, 2006). This situation has attracted notice from the legal fraternity particularly those concerned with civil and criminal implications; as well as by criminologists. There has been however, little or no attention from the political scientists in whose genre the public/private nature of the law presumably falls. The conversation has instead been dominated by the neo-criminological governance theorists such as Crawford (2002); Stenson & Edwards, (2003) and Hughes (2007). It leaves the impression that the modest politics of communal administration, law of public nuisance and public shelter management are not the forte of the political scientist. This is ironical since it is exactly the type of detail that has received the most attention when examining prison administration in the nineteenth century, according to Foucault (1977). It leads one to speculate that the twenty-first century so-called ‘disaffected youth’ may be a fabrication of law enforcement performance targets, Home Office media releases, crime deterrence group agendas, juvenile integration projects, naming and shaming measures and the unclear digital CCTV recordings of the modern age. In order to understand the genesis of questions that have arisen over ASB, it is necessary to examine the cultural backdrop on which public policy is developed. David Garland (2000) provided a durable beginning to this debate in his treatise, The Culture of Control by stating that, ‘Criminal Justice strategies and criminological ideas are not adopted because they are known to solve problems’ (Garland, 2000 p. 26). It therefore behoves us to search elsewhere for the cause as well as the solution. It is unlikely to be found in the fear-fuelled public domain. Instead, one has to examine the various factors behind these fear-filled notions on ‘yobs’ in ‘hoodies and ‘neighbours from hell’, or rather, what interests are served by their perpetuation. The question that Garland asks is; what is the new trouble of transgressions and communal order that needs a new method of crime management in reaction? He goes on to suggest that there is budding difference between punitive measures employed against criminals – which remains within state jurisdiction hence adds to the perception of state power – and crime control which seems to have eluded the state’s ability to manage. This leads to a rise in both rate and fear of crime with those of greater means feeling most disadvantaged in terms of protection. In the United States, according to Garland, two million people languish in prison and two are executed weekly. The prison population in the United Kingdom is also steadily increasing, and there is marked growth in the private security sector as well as CCTV surveillance on the streets. A rise in gated communities has also been noted, with the author wondering whether this represents a ‘neo iron age of rationality’. The ravages of contemporary living have ensured that the iron cage of rationality embraces more than prisoners (cf. Weber, 1908). The withdrawal into individual cocoons have led to severing of communal ties (cf. Durkheim, 1897) leading Garland to conclude that the resulting sense of anxiety have led to adoption of retrogressive policies that would have been unacceptable to rational thought three decades ago. This feeling of insecurity has created a climate where the UK and US electorate have allowed politicians to institute harsher measures in the punishment of offenders. This has ironically created the impression that the state’s capacity to restrict crime and ensure security is limited. Thus a new criminology has been created, that of the menacing ‘other’ and the application of warlike terms to crime. Focus has shifted from social welfare to economic solutions. Control of crime has become a function of lack of incentives, risk and circumstantial engineering. The focus has become the use of technology to affect monitoring of the criminal element. This has led to the employ of information technology in increasingly invasive ways that erode the individual’s privacy. There are some weaknesses however in this argument in that there is a tendency to overlook the relationship between social situations and agency; there is no incorporation of the nonreified idea of agency into the evaluation (Sibeon, 2004); a tendency the overdo the socialisation aspects of the personality, and an attitude of genetic inevitability and anti- establishment relativism (Owen, 2006a, 2006b). Globalisation There is increasing symbiosis in the sphere of international relationships. These links cover trade and industry, political, regulatory and literary areas. This is made possible by the progress made in telecommunication, elimination of economic barriers, and the growth of a framework of international law. This shift in economic, political and cultural cohesion has made it difficult for individual states to follow home-grown policies without regard to the international community (Beck, 2000). This has led to dual changes impacting on criminology - the convergence of policies related to criminal justice across the Anglophile north, and an amalgam of macro socioeconomic advancements, progress in International Human rights and a speeding up of policy diffusion all lead to a uniformity of criminal jurisprudence. This is further hastened by desire to attract capital by governments that leads to adoption of the same. This homogenisation encourages the growth of privatisation, social inequity, deregulation, and expansion of the penal system, and reduction of the welfare state. Inevitably, it is the young and disadvantaged who bear the brunt of this change. In light of this information, the Ministry of Justice seeks to effect punitive measures that are sufficiently deterrent, develop rehabilitation of offenders, augment repayment of victims and debt to society, and decrease the occurrence of crime with concomitant increase in public security. This of course requires a shift in paradigm that is outlined in the green paper of 2010. We are seeking to deliver effective punishment, improve the rehabilitation of offenders, increase reparation to victims and society, reduce crime and improve public safety. Solving these problems requires a radically different approach. The Green Paper sets out how we propose to achieve this. Punitive Measures Where possible, offenders will be obliged to repay the society for their ills; this will include two important aspects – recompensing the victim directly where possible and the communities and the taxpayer as well. This will be done by instituting measures to make this possible including work in prison, with earnings going to support victim funds, and community service without compromise to the community and with appropriate weight to the offender. Rehabilitation The system as is does not pay enough attention to the rehabilitation of prisoners and this should change in order to reduce crime rate. The ministry of justice proposes to do this by reducing drug addiction by encouraging recovery. This is done by establishing wings in prisons specifically for this purpose, and improving treatment within the community. Secondly, the identification and isolation of offenders with issues of mental health so as to redirect their care to appropriate agencies. Introduction of incentivised pay Employees in the penal industry need to be motivated and rewarded for the production of positive results. These can be measured by statistical reduction in crime rate and carried out by private and innovative experts to assess its viability. This would be done by deliverance of a minimum of four new reimbursements by results initiatives within the next year to provide a practical assessment of its viability. This will be complemented by development of approaches to facilitate better living conditions by job creation, drug use minimisation and reduction of re-offenders and incentivising local communities by sharing savings produced by these measures. Reform Measures. Courts should have the wherewithal to institute penalties that punish yet give opportunity for rehabilitation, while ensuring public safety. This can be done by encouraging guilty offenders to plead early by giving discounts commensurate with that. Also the deportation and caution of foreign nationals rather than incarceration and reduction in remand numbers. It would also help to revise the parole board evaluations for better management of risk. The courts should also have discretion on use of the suspended sentence and this should be extended for longer than a year to give justices more options. There has also been a policy shift to increase the use of fines instead of community service. Juvenile Justice It will be noted that this sector is doing well in delivery of improved results in the area of juvenile delinquency but there is room for improvement nevertheless. The same reforms that apply to adult offenders may be used here where appropriate or necessary. The policies that can facilitate this include financial responsibility to motivate the agencies at communal level. Community Outreach for Crime Reduction It is not possible to deliver reform of the system without inclusion of the society. Enhancement of accountability especially at the periphery is key, as well as more open collaboration with the volunteer and community sector. There is need for diversification of opportunities in order to achieve desired results. Other incentives are the Neighbourhood Justice Panels that bring together local legal professionals and other volunteers to determine measures to be taken in cases of petty crime and disorder. Conclusion The growth of the transgression management complex trait of late modernity as argued by Garland would be augmented by an acknowledgement of the post-Foucauldian evaluation of psychobiographical characteristics of the entity. However there is no doubt as to the significance of his contribution to the field of penal policy in Western society. The establishment of a juvenile taskforce and other proposals are progressive in reforming the penal system however the rhetoric on anti-social behaviour continues as well as its enforced criminalisation. The ASBO and other related orders are certainly implemented on a countrywide scale; with no solid improvement in ‘moralisation’ of society. On a global scale, the processes of international reform of jurisprudence are still in infancy and many opportunities as well as pitfalls lie ahead. The concept of globalisation is however both seductive and imperfect due to the fact that it is not one dimensional. Economically, it comprises a predominantly United States influenced neo-liberal concept of communal accountability in a backdrop of a dictatorial state. Legally, globalisation is inspired largely by the United Nations which supports are conflicting concept of universal human rights disseminated by social democracies. Thus it simultaneously gives, as it takes away. What is needed is an evaluation that neither overlooks nor elevates the new justice proposals but recognises that their application may only be realised in certain aspects and localities and there will be an inevitable revising, challenges to overcome and areas will be contested. The main point to be addressed is that whereas unity of purpose is desirable, the acknowledgement of diversity is key. REFERENCES Beck, U. (2000). What is Globalisation? Cambridge, Polity. British Politics, 2008, 3, (300–323) r 2008 Palgrave Macmillan Ltd 1746-918x/08 www.palgrave-journals.com/bp Crawford, A. (2002). ‘The governance of crime and insecurity in an anxious age: The trans- European and the local’ in Crawford, A. (ed.) Crime and Insecurity: The governance of Safety in Europe, Cullompton, Willan. Cook, D. (2006). Crime and Social Justice. London: Sage. Davies, W. (2006), cited in Harris, K. Respect in the Neighbourhood, Lyme Regis: Russell House Publishing, p. xiii. 5 July 2006. Retrieved March 5th, 2011from: http://www.potlach.typepad.com Donzelot, J. (1980). The Policing of Families. London: Hutchinson. Feeley, M. and Simon, J. (1992). ‘The new penology: notes on the emerging strategy of Corrections and its implications’, Criminology, vol.30, no. 4 pp.449–474. 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