Criminal Law And Crime Policy Research Paper

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1. Introduction

While the forms and functions of criminal justice institutions vary significantly around the world, trends can be observed that reveal a shrinking planet where countries are heavily interdependent, capitalism is triumphant, and pressure is keen for universal norms of political, economic, and social life. Although data from developing nations are often either inadequate or nonexistent, and much crime policy seems to be in flux, the available information suggests similar patterns in both Western and non-Western nations (with exceptions for some Islamic states). Whether the society is democratic or authoritarian, industrialized or developing, its police and courts are expected to deal strictly (often harshly) with law-breakers— particularly those who have committed violent offenses and violations of drug laws—and to respond to demands for protection from the public, ordinary citizens as well as elites. Rapid developments in transportation, communications, and trade have pro-vided new opportunities for transnational crime and local crime increasingly to reflect and shape global events. In response, the nations of the world are trying to coordinate strategies to address crimes like drug trafficking, arms smuggling, and fraud that cross national borders. Crime policy is affected by political change, too. The spread of constitutional democracies on several continents and the breakdown of traditional mechanisms of informal social control in the Third World are creating a new awareness of rights in nations where they have previously been unknown, a development with significant implications for peoples’ expectations that criminal justice will operate efficiently and fairly.

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As with the policy measures of the early twentieth century, get-tough morality—this time in the form of a worldwide war on drugs, fought with treaties and international cooperation as well as with conventional law enforcement—coexists with efforts to find alternatives. Today, however, the innovations are often taking place outside state-centered justice systems, in the spread of private policing and the use of community dispute resolution in both traditional societies and industrialized urban areas. New paradigms for dealing with incidents that disrupt community harmony—principally the restorative jus-tice ideals behind programs like ‘family conferencing’ in New Zealand, Australia, and elsewhere—seem likely to have a communitarian influence on criminal justice. The full effect of globalization on official social control remains to be discovered.

2. The Punitive Trend

No clear relationship exists internationally between levels of crime and the prevalence of official punishment. A 1997 analysis of 34 countries conducted as part of the Fifth UN Crime and Justice Survey found no significant associations between sentencing rates (per 100,000 population) and crime rates (Newman 1999, p. 91). Similarly, harshness in penal law may accompany either increasing or decreasing crime rates. Crime control policies in South Africa and the United States, for instance, show quite similar directions, even though trends in the incidence of crime are very different. In the 1990s, violent crimes like robbery, assault, and car-jacking were on the rise in South Africa but falling in the United States. Both countries, however, adopted longer and mandatory sentences, asset forfeiture laws, and limits on bail eligibility. Penalties for property crimes continued to be relatively light throughout Western Europe during that period, despite significant increases in rates of offending in several countries, while in North America lower rates for such crimes did not reduce sentences.

These illustrations of statistical patterns suggest two important realities of crime policy around the world at the millennium. One is that it is generally quite punitive, at least if one defines ‘punitive’ to mean the criminalization of many behaviors deemed un-desirable and heavy reliance on the deprivation of liberty. The other is that the United States—in many respects the most punitive of the developed countries (and growing more so all the time)—has tremendous direct and indirect international influence.

In the 1960s Packer articulated two conceptions of the criminal justice process—the crime control model, which gives priority to the efficient capture and containment of potential and actual law-breakers, and the due process model, which looks beyond immediate community protection and seeks to guarantee fundamental fairness to all those who come within the reach of the criminal justice system (Packer 1968). While scholars and policymakers are still wrestling with the tension between these two concepts of the function of the criminal sanction, it seems clear that the crime control perspective dominates the operations of police and courts around the world.

According to data from the United Nations Surveys of Crime Trends and Operations of Criminal Justice Systems (UNCJS)—admittedly limited to those countries that respond and compromised by inevitable differences in reporting standards, methods, and capabilities—prison is a more popular sanction in most countries than noncustodial penalties like fines (a common alternative) or community supervision. (International numerical comparisons in this section come from the Fifth UN Crime and Justice Survey (Newman 1999, pp. 89–119) unless otherwise noted.) Whether it is Vietnam—where smuggling as little as 100 grams of illicit drugs can warrant the death penalty—or the United States—where federal guide-lines instruct judges to sentence youth more harshly than adults for commission of the same crimes—harsh punishments have great appeal.

One standard measure of harshness is the rate of incarceration per 100,000 population. On this score Russia and the United States are the clear leaders, Russia with a rate of 411 in 1994 and the US with a rate of 468 in 1999 (as of June 30), the last years for which data are available (Bureau of Justice Statistics 2000). Many countries’ incarceration rates rose substantially during the first half of the 1990s, particularly in Eastern Europe; in Italy the rate increased 100 percent between 1990 and 1994, perhaps due to a new and harsher drug law passed in 1990 (repealed 3 years later).

Despite opposition from the Catholic church, international political bodies, and human rights organizations, the death penalty continues to be used widely in developing countries and in the United States, where 3,652 people were on death row at the start of year 2000 (NAACP Legal Defense and Education Fund 2000, p. 1). Amnesty International reports that 1,813 people were known to have been executed in 31 countries in 1999, with China, Congo, Iran, Saudi Arabia, and the United States accounting for 85 percent of that number (Amnesty International 2000). Many countries show considerable ambivalence towards capital punishment. Russia abolished and reinstated it three times in the twentieth century, and the Philippines recently began executing people after a 20-year moratorium. More countries are likely to abolish the death penalty since it is a requirement for membership in the European Union.

Criminal justice policy can also be assessed by noting procedural protections provided to accused persons. Although the common law countries tend to emphasize constitutionally-mandated defendants’ rights (like the presumption of innocence and rigorous standards of proof at trial), it is by no means clear that in practice they are more protective than civil law countries, which often incorporate similar protections into the inquisitorial process in less formal ways. It is in English-speaking countries, in fact—Britain, South Africa, India—that the right of the accused to remain silent has recently come under attack; in the United States, the imperatives of the war on drugs have caused significant erosions of the prohibitions against unreasonable search and seizure and self-incrimination. In 1999, the British Home Secretary called for an end to the ancient and automatic right to trial by jury. He also criticized the prohibition against trying a defendant more than once for the same crime (double jeopardy), a constitutional provision in the United States that has been weakened by a number of court-approved exceptions.

The most obvious influences of United States’ criminal law and crime policy on other countries’ punitive trends can be seen in innovations related to the war on drugs, among them the forfeiture of suspects’ assets, money-laundering laws, and elaborate sting operations. The long arm of US policy has reached into other areas as well. Laws that require community notification when a sex offender is released from prison have gone into effect in the United Kingdom and Canada. Another American export is habitual offender legislation (the ‘three-strikes-and-you’re-out’ policy that helped to swell California prisons at the end of the twentieth century), which is now common in Europe and has been adopted recently in Australia and New Zealand. American dominance meets with occasional resistance, but the trend is likely to continue as long as federal law enforcement personnel staff American embassies and provide training in crime control both at home and abroad.

The punitive trend is not universal. UNCS data from 1994 indicate that fines comprise more than 70 percent of sentences in a number of countries on three continents; the survey found that in Japan fines were imposed in 95 percent of cases. One study of increases in violent juvenile crime and policy responses in Europe and the US found that, although in Britain, the Netherlands, and the US sentences have been lengthened and procedural protections narrowed since the late 1980s, most of the countries studied have retained programs that provide options besides secure detention and are working to develop social and vocational services intended to prevent juvenile crime (Pfeiffer 1998). Ideas about alternatives to incarceration that have become standard for minor offenses in Japan are taking hold in developing countries, though they have yet to materialize as policy. In India in 1996, the Law Commission recommended legislation providing for noncustodial punishments. In Kenya in 1999, a conference of criminal justice professionals, UN representatives, lawyers, and judges pledged to work toward the decongestion of prisons by expanding alternatives to incarceration for minor and first-time offenders. (It should be noted, however, that these sentences are not always less punitive than short prison stays and that they rarely reduce incarceration rates.)

3. Policing And The Public

A prominent comparative scholar of policing recently has warned that most of the world’s police forces are ‘regime police,’ answerable to government and its needs and ‘organized to be responsive upward’ (Bayley 1999, p. 3). The undemocratic essence of such policing is its inability to respond to public demands and the resulting unwillingness of members of the public to turn to police in anything less than emergency situations. Two worldwide developments—community policing and government investigations of police behavior—may soon alter Bayley’s conclusion. Through these innovations, policymakers, concerned citizens, and international organizations are seeking greater police efficiency, accountability, and transparency with unprecedented vigor, though it is difficult at this point to say to what effect.

‘Community policing’ is an international buzzword that may mean anything from citizen patrols in Kuala Lumpur and Singapore to the highly professional commitment of police working with residents and city agencies in Chicago neighborhoods (Skogan and Hartnett 1997). The vagueness of the term and the potential for abuse—empowering vigilante groups, dividing neighborhoods by building networks of citizen informers—gives warning of its antidemocratic possibilities, and flaws in concept and implementation are notable everywhere. But in theory, community policing promises visible patrols, decentralized command, and the chance for the public to communicate with police about community problems (Skogan and Hartnett 1997, p. 6). Its appeal is an indicator of the public’s desire for participation in and oversight of the institution that is at least theoretically charged with the politically neutral protection of a community’s security. In volatile and crime-ridden Bogota, Colombia, the police chief sees community policing as a remedy for public distrust; in Lusaka, Zambia, businessmen assist the officers assigned to patrol the commercial district; in March 2000, the Israeli Minister of Internal Security announced his intent to reallocate some resources from defense to community policing. Western countries that have already embraced a paradigm shift from the old aims of professionalism and paramilitary discipline in policing to the new community-oriented perspective are coming to the aid of less developed countries that want to get on board. The US has helped El Salvador initiate foot patrols and community relations efforts, the UK has held training sessions for Chinese police chiefs, and officials from the Czech Republic have been consulting with the Canadian Mounted Police.

Greater public accountability is also furthered by governmental concern over the police brutality, bias, and corruption that are endemic in many countries. In the US, the Crime Act of 1994 has given the federal government unprecedented authority to investigate abuses in local police departments; investigations of police practices in Los Angeles, New York, and Buffalo, among other cities, have resulted. In Britain, the race relations law has been expanded to include liability for police bias, following the charge of institutional racism made against the London Metropolitan Police after a botched investigation of the murder of a black teenager killed by whites. Anti-corruption campaigns in Latin America and Africa include a focus on police, and local corruption in Japan led the National Police Agency to institute random inspections of prefecture management and conduct. While it is unlikely that major changes in police culture will occur soon as the result of these measures, they are reinforced by international pressures, some of which carry powerful incentives for change. Turkey’s effort to comply with requirements for admission to the European Union includes new legislation that would encourage the prosecution of police who torture.

4. Future Crime Policy Issues

Even as the public police around the world are subjected to increasing scrutiny, reliance on them may be diminishing. Policing is no longer solely a state function but has been ‘pluralized’ (Bayley and Shearing 1996). In South Africa, Australia, the US, and many other industrialized countries, private guards outnumber public police several times over, providing security for companies, government buildings, and affluent neighborhoods. The policing function— combined with adjudication of minor crimes in some developing countries—is also carried out by volunteer groups, who are sometimes informal community associations, sometimes adjuncts of the criminal jus-tice system. To some degree, these institutions are reflections of a community’s view that the formal justice system is unresponsive or unfair, but they may also manifest a need for indigenous solutions to conflict that is fundamental to a particular culture (Ebbe 1996, Brogden 1996). Developing regulatory schemes for these domains of policing seems likely to be a policy challenge of the future.

The globalization of trade, communications, and transportation has brought more than international consulting opportunities to criminal justice policy-makers and practitioners. Controlling transnational crime has become a major issue. Celebrated incidents like the 1993 terrorist bombing of the World Trade Center and more routine (but often violent) crimes like drug trafficking across national borders have brought about calls for internationally coordinated crime control strategies (Muller et al. 1997, p. 137), but law enforcement in this context—the intersection of criminal law and international law—presents problems of sovereignty, proportionality, and privacy. Without adequate regulation, pre-existing agreements between countries may be unnecessarily abrogated and amorphous behaviors (like conspiracy) over-criminalized. Constraints on police authority and conduct, which are difficult to impose in a single country, will be even more difficult to enforce at the international level. International law enforcement efforts may be rejected or ineffective because of an insufficient understanding of the particular political and cultural traditions of individual countries.

Recognizing these potential pitfalls but acknowledging the need for curbing illegal traffic in drugs, arms, and immigrants, as well as bribery of public officials, the International Penal Law Association in 1999 adopted a resolution on transnational organized crime. It recommended a parsimonious definition of international crimes; the regulation of extraterritorial jurisdiction and police cooperation; the adoption of standards for judicial assistance and cooperation; and the protection of defendants’ rights in international criminal proceedings (International Enforcement Law Reporter 1999). The issues raised by this resolution are likely to be debated for the foreseeable future.

Cooperation in fighting transnational crime must obviously also include information exchange, often electronic. The US Attorney General has proposed a Global Criminal Justice Information Network that would link criminal and intelligence databases from all over the world and would be run by the US Department of Justice. But the prospect of globally-shared investigative data and international data surveillance raises difficult issues of privacy, accuracy, and dissemination. It is unclear at this time what criteria would be used for the protection of data or how they would be enforced.

Two other issues highlight the increasing inter-nationalism of efforts at crime control. Countries in transition from authoritarian to democratic regimes often experience rising crime. Borders that were formerly closed become permeable, encouraging the growth of multination organized crime syndicates. More generally, freedom brings license; Nelson Mandela, commenting on the increase in violent crime in South Africa’s affluent white suburbs, has noted that liberation frees criminals, too. Corruption in democratizing countries is also common, though what appear to be an increase in incidence resulting from regime change may in reality be the effect of placing a new light on an old problem, as seems likely in some of the Eastern European countries. The determination of whose standards to apply in addressing these problems and how to arrive at international consensus is a challenge for international policymakers.

A related issue is the handling of war crimes, genocide, and crimes against humanity. The recent prosecutions of the former dictators of Chile (Augusto Pinochet) and Chad (Hissein Habre) by the courts of other countries may signal an end to the traditional deference countries show to one another’s sovereignty where serious violations of human rights have occurred. The international law principle of universal jurisdiction—the idea that a former head of state can be tried anywhere for atrocities committed while in office—is becoming operational. Empowered by the United Nations Convention against Torture and national laws that confer jurisdiction over human rights crimes, a number of European courts have charged foreign officials with crimes committed in Rwanda and the former Yugoslavia. Furthermore, the establishment of a permanent International Criminal Court (in 2002) to try these crimes will further institutionalize a far-reaching concept of international criminal liability. Proponents of the court also believe that it will have a deterrent effect on heads of state, though its authority is likely to be weakened by the refusal of several countries, including the US and China, to support it.

5. Conclusion

At the dawn of the twenty-first century, crime policy in a number of countries reflects a departure from some of the assumptions of modern, liberal criminal justice systems. The aim of both civil and common law traditions is to elicit the truth of what happened in a particular situation that gave rise to a criminal charge and to determine the legal consequences of that truth for the individual offender (and perhaps for the victim, whose concerns are now getting increased attention). But legislators, judges, and scholars are beginning to depart from the exclusive goal of individualized justice and articulate a larger concern for what happens to community life as a result of the incident under consideration and others like it. This focus can take a number of directions, two of which are showing up as policy innovations with potentially far-reaching consequences.

Sometimes called ‘actuarial justice,’ the more common of these directions has entered the mainstream in American criminal law and criminal justice practice (Feeley and Simon 1994). Sentencing, probation, and parole have become risk assessment functions. Determining penalties and how offenders are supervised as they pay those penalties depends on the degree to which the defendants pose a risk of reoffending, given not only who they are but what their salient demo-graphic characteristics are (age, employment status). The ‘New Penology,’ as two prominent critics have called it, no longer seeks to change or to punish lawbreakers, but ‘to regulate groups as part of a strategy of managing danger’ (Feeley and Simon 1994, p. 173). The other approach—a burgeoning movement in a number of countries for the resolution of minor disputes and deviance—is restorative justice, in which the victim and the offender join in a ceremony that acknowledges the wrong that has been done but seeks social reintegration of the offender and assistance to the victim, restoring harmony through a mutually beneficial process (Braithwaite 1989). One researcher reported in 1999 that at least 300 victim–offender reconciliation programs are operating in North America and over 500 in Europe (Umbreit 1999).

The managerial aspects of the actuarial model are obvious; the crucial decision is made by legally empowered figures in a centralized hierarchy of state institutions. They place primary emphasis on the outcome as the force that will assure community security and pay only cursory attention to individual autonomy. Restorative justice, on the other hand, relies on decisions made locally and jointly by the parties and others involved in the incident, and the community is expected to benefit from the process of arriving at the decision as well as from the resolution of the problem. If surveillance dominates actuarial justice, empathy and what Braithwaite calls ‘rein-tegrative shaming’ characterize restorative justice.

It is unclear which of these models of criminal justice will prevail in the next decades, or whether they will continue to co-exist. Taken together, their departure from the individualistic models of twentieth-century jurisprudence and criminology is stunning, overshadowing even the changing nature of policing, the privatization of prisons, globalizing influences on criminal justice, and get-tough sentencing policy. Their emergence, and the ways in which they will interact with the other developments mentioned, points to our century-spanning generation as a decisive moment in the history of criminal justice.


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