Sociology Of Criminal Justice Research Paper

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1. The Origins Of The Concept

The term ‘criminal justice system’ (hence designated as CJS) is a recent acquisition of the scientific and professional vocabulary. Since the publication of the United States. President’s Commission on Law Enforcement and Administration of Justice report ‘The Challenge of Crime in a Free Society’ (1967), the term has been used with a somewhat precise meaning.

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However, in the process, the Commission’s investigation led to the claim that the goal of the ‘war on crime’—the fight against insecurity and the foundation of public safety of the persons, goods, and moral integrity of the citizenry—necessitated a comprehensive concept inclusive of all the institutions concerned in this objective. The breadth and complexities of this conceptualization led to the identification of incongruities between some of its parts, allowing critics to call it a ‘nonsystem,’ referring to the apparent incoherences and contradictions in the functioning of the overall system.

It became evident for the Commission that there existed a real and a virtual inter relationship, reflecting an interdependency between legislations, institutions, organizations, and scattered offices throughout the machinery of criminal justice, whose goal is the maintenance of public order, the safeguard of liberty, physical integrity, and concern for the victims of the failings of the protective shield, extended by the law and protected by the Constitution. Recognizing these historically and nonlogically ordered institutions, laws, services, and so forth, the Commission wanted to give a degree of coherence to all of them in order to secure a better, more efficient coordination, built around a common goal: assuring, under the supremacy of the law and the Constitution, equal justice and protection to everybody. Despite the criticism, the concept of the CJS was born. Thanks to this organizational principle (a ‘system’ necessitates some logic), overlapping jurisdiction, duplication of services, and irrelevant goals or functions were identified. The Commission’s logo—with its input and output entrance and exit design—illustrated graphically how, from arrest to release, from sentence to punishment, the whole process of criminal justice constituted an administrative and logical ‘whole.’ This holistic approach provided the reformer with a blueprint and a compelling agenda for reform.

However, these recent origins of the CJS should not hide the basic fact that the inspiring and commanding center of their systematizing approach can be under-stood as a development of the code d’instruction criminelle of 1808. This code was characterized by (a) rigorous penal procedural rules; (b) the availability of material and technical conditions to implement those rules; (c) a reasonable degree of coherence among the constitutive elements of the system, principally the offices of the prosecutors, magistrates, and other officers of the judiciary. Similar transformations took place in other Western countries that incorporated a systematic approach. The principle of the separation of powers, the presumption of innocence, and the independence of the judiciary were nowhere threatened by the emergence of the CJS, with the notable exception of course in the totalitarian countries.

2. Practical Impact Of The Concept Of The Criminal Justice System

A radical transformation in public administration began as early as the middle of the nineteenth century, accelerating after World War I and continuing beyond World War II. One result was the emergence of an activist and interventionist social policy. A similar transformation in criminal justice administration did not occur until later. In the process of its consolidation, it confronted the cultural revolutions of the 1960s and the 1970s, and even some basic principles of the penal procedural law underwent some changes.

Among the consequences of the development of legal structures and philosophies were a loosening up of the system, allowing an increased role for a defense attorney (human rights legislation had a major impact on the proactive role of the defense councils), and resulting in an increase in the burden carried by law enforcement agencies to accommodate the increasing demands of defense attorneys as well as rules edicted by commissions of human rights (the need for ‘fool-proof’ proofs required by tribunal became more cumbersome and proceedings slowed down notably). The increase of the workload in the prosecutor’s offices, as well as at the courts, was not in step with the necessary budgetary requirements allowing a decent discharge of the increased workload devoluted to the CJS in charge of the ‘post-arrest’ phases.

Additionally, there was a growing incoherence between segments inside the diverse components of the CJS. Undue competition has arisen between services, which should have been submitted to rules prescribed by their common goals. Moreover, a growing politicization has taken place. The power of unions is increasing everywhere: the judges, the prosecutors, and police are organized in their own unions. Some unions of magistrates, particularly in France and in Italy, are playing an active and sometimes radical role inside of the CJS. Thus the coherence of the CJS has suffered from the centrifugal forces in its own ranks. This worldwide phenomenon is affecting open societies, and while the European continental nations, in line with their centralizing traditions, are seeking new measures in tune with their traditions, all of them are also facing similar problems.

3. Components And Goals Of The Criminal Justice System

The 1967 Presidential Commission, which is de facto the originator of modern research on crime, delinquency, victimology, and criminal justice agencies, introduced and somehow accredited a rather artificial distinction between research carried out on the CJS and criminology. This discipline was related, if not assimilated, to etiological research on crime causation. Its continental origins were stressed. Criminal justice research, born of the common law tradition, postulated the existence and interdependence of all components of the CJS, including law enforcement, criminology, criminal justice administration, prosecutor’s offices management, sentencing guidelines for judges, and so forth. Of course, ‘corrections,’ a new designation for penology, was a major aspect of research on the CJS. These distinctions also reflect a growing attention to the evolution of ideologies, to new tendencies of penal philosophies, justifying re-search on alternatives to the actual CJS, which answers to the needs of victims and new sentencing philosophies. The analysis of the performance of the CJS, evaluation of alternatives for this system, and all kinds of innovations, were also an integral part of research on the CJS. Also, the treatment of offenders, their resocialization, programs of crime prevention, and experiences with ‘restorative justice’ became the spear-heads of research in criminal justice.

Many of the major changes which the CJS under-went are related to the sudden surge of the world economy and commerce in the direction of globalization. Accordingly, the problems facing the CJS became global, embracing the whole world. One has to face the fact that crime and justice have to be addressed in an open world, at the level of the global economic and financial system working with the tools of the newest information and technology. The sociopolitical system and the political power structures are closely related to the new financial, commercial, and economic trends and powers. The magnitude of the challenge facing all the components of the CJS is tremendous. Consider, after 1980, that the volume of the sales of foreign stocks and bonds increased drastically on the market (Adler et al. 1994).

However, many countries are largely decentralized and have residues of common law traditions. There, the integration and internal coherence of the CJS is limited; rather the tendency is toward internal in-coherence and diversity. Thus it is not surprising that these countries, illustrated by the USA, are much slower to ratify or contribute to international criminal and penal jurisdiction. An example is the US government’s refusal to adhere to the Naples’ convention sponsored by the UN to create an international penal tribunal.

4. Criminal Justice System And The Courts

In this context of global integration, the thrust toward internationalization increasingly impacts local crime scenes (arms dealing, etc.) so that, directly or in-directly, they become integrated into international activities through the operation of off-shore banking, among other devices, intermingling, sometimes, with secret service operations (e.g., the Panama-Noriega scandal); and with illegal merchandising traffic, tax frauds, illegal financial contributions to political campaigns or parties, and so forth. Money laundering is the lifeline of all these criminal and illegal activities. Out of necessity a new international CJS is emerging with the support of the UN and the European Union (EU). Other tribunals in Africa and Asia are in process of being established.

One can see that open democratic societies are building new lines of defenses using legislations and sharpening legal tools available to the police and prosecuting attorneys. A new Europe-wide legal sys-tem is being created and is slowly and systematically building structures and defenses, which are both reactive and proactive. The building of such a coherent system was, in part, a response by the CJS to challenges initiated in continental countries under the auspices of the EU.

5. The Debate On The Definition Of Deviance And Criminality

In the 1970s sociology questioned what distinguishes a ‘criminal’ act from a ‘deviant’ one, thereby adding a substantial burden to the functioning of the CJS. Such questioning created difficult dilemmas for the CJS, whose task is to enforce the existing laws. Problems arose as to where to draw the limits of the interventions of the jurisdictions of the CJS agencies in controlling or repressing the ‘criminal’ and unlawful activities of large, and certainly vocal, minorities. The frontiers between crime and deviant behavior became blurred. The law enforcement agencies, occupying the first line of defense in securing public safety, became hesitant in the application of the law. This environment of questioning and doubt encouraged the increasing activism of human rights defense groups, critical of the law. And when the police tried to enforce questionable laws, they were frequently confronted by activist groups, sometimes with violence. Many court actions followed violent confrontations in the streets. Also, accusations against the police for being prejudicial created a major impediment to efficient policing.

The manifold increase in the charges burdening the prosecutor’s offices, mainly in major cities, reflected itself in the overflow of cases brought in front of the judges. Plea bargaining before the trial (essentially a kind of out of court settlement between the prosecutor and the defense council) became an accepted way of proceeding. For several decades it has been the only way to avoid the complete paralysis of the whole judicial process. These negotiations are questionable, morally as well as legally, and sometimes they are clearly illegal, although they are still currently practiced in the US courts system. In contrast, these practices are strongly rejected by the European continental legal system, but the future of its integrity is, unfortunately, an open question. The caseload of the courts is increasing constantly and political power negatively confronts the judiciary in several important Western European countries. The main issues are political corruption, bribery, and abuse of power. We have yet to see the outcome of this type of conflict inside of the continental system where political power negatively confronts the CJS.

6. Changes In The Philosophy Of Punishment

Imprisonment was a notable advance over the all-too-common previous method of punishment: the death penalty. Virtually from its beginnings imprisonment developed in response to religious concerns (largely from nonconformist denominations—Methodist, Congregationalist, Presbyterians, Quakers, Baptists, etc.), and was informed by ideas of the continental Enlightment, as well as English social contract and utilitarian theories, and the views of Scottish moral philosophers.

In the north-east sector of the USA these religious and intellectual forces combined to encourage a massive social experiment in punishment, which was grounded in the emerging belief that humans are social beings possessing ‘natural’ or inalienable rights, capable of reason, and inherently good or virtuous: the infant cannot be evil. From this perspective the logic of imprisonment would not only punish the wrongdoer, but seek also to rehabilitate that wrong-doer, as well as to deter others. Elmira, Auburn, and Cherry Hill were famous attempts to express this evolving penal philosophy, and de Tocqueville’s tour of these institutions was an example of European continental interest.

This complex and integrated humanistic view, issuing from the Enlightment, was challenged by developments in sciences such as medicine and psychiatry. These disciplines understood criminal acts to arise from personality disorders rooted essentially in social, biological, or psychological conditions. In a sense, the ‘medical model’ retained but transformed elements of the ‘humanistic model.’ The goal of rehabilitation was retained, but its justification was to be found and legitimized in scientific methodology. One consequence of this scientific approach, as it gained influence, was to impact the CJS through legislative reforms and judicial practices, for example, the rapid spread of indeterminate sentences, and the transferal of the principle of rehabilitation from being a concern of the larger society (religious activists, legislators, educators, etc.) to become the concern of medical sciences.

7. Emergence And Hegemony Of The Medical Model: Conflicts Of Goals With The Legal Tradition

The nature of the scientific method is the permanent questioning of existing proofs and practices. For example, in medicine, it results in a continuing revision of therapeutic practices and rehabilitative techniques. Naturally, a continuing tension and conflict develops between the ever-changing medical-therapeutic approach and the desire of the CJS to retain humanistic principles of equity, rights, and equal treatment before the law. This situation threatens its coherence and creates an increasing vulnerability for the CJS, especially to its claims of legitimacy.

The challenge to legitimacy was not limited to the confines of the CJS, but permeated the entire open, pluralistic, humanistic society. Everywhere, a pro-found crisis of values occurred: in the family, and in institutions of authority, including the medical and academic communities. The identification of who or what was responsible for this turmoil emerged from a variety of diverse sources, making it impossible for a generally agreed upon understanding to be reached, and so disarray prevailed.

The impact on the CJS, which became closely associated with the medical model, was disastrous in that it allowed for both an immunization of the ‘underclass’ against claims of criminal behavior, and the emergence of new prophets with new social and cultural constructs. An attempt to correct this situation, and to devise a means of bridging the chasm separating the reality of crime and the CJS, was Von Hirsch’s (1976) doctrine of ‘just deserts.’ This doctrine promised law and/order while accommodating the new forms of behavior. The end result was a temporary compromise in which the CJS maintained and protected the core values concerning material and personal security, while adapting itself to the demands of the ‘post-Woodstock’ society.

8. Some Future Perspectives

The real and symbolic ruins that were the reality of the CJS under the conditions of this temporary com- promise were, fortunately, addressed by H.L. Packer (1968). Packer identifies two models. The first is the ‘due process model,’ characterized by the jurisprudence of the Warren Court, in which most of the odds were placed against the defender of public safety and/order. This model amplified the ‘rights’ of the individual, and encouraged a critical, reactive attitude on the part of the judiciary. This model has a rule- oriented rather than a substantive-oriented approach.

The second is the ‘crime control model,’ which emphasizes the existence and exercise of official power. Its validating authority is ultimately legislative (al- though approximately administrative). It can be viewed as consistent with, and a continuation of, humanistic-Enlightment principles. In light of the lessons of the eighteenth century, and because Packer’s theories are deeply rooted in humanistic-Enlightment principles, one can surmise that his crime control model will prevail in the near future.

9. Conclusion

In conclusion, the contributions of the social sciences to the CJS are varied. In continental Europe, the social sciences, as an academic discipline, had limited influence, notwithstanding contributions of outstanding scholars. In North America the social sciences have established a strong academic position and exercised a direct influence on the CJS. This influence also included a contribution to the intellectual and moral crises which characterized the 1960s and the 1970s. This was largely due to an epistemological crisis, which shook the very foundations of social and behavioral sciences. Whether or not they will recover their empirical scientific tradition is still an open question. Hopefully, the positive renewal of the CJS, influenced in part by Packer’s writings, may have a spillover affect into the social and behavioral sciences.


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