1st Principles: Criminal Justice


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The Monash Association of Debaters (MAD) Member Training Program 2010 presents:


by Victor Finkel, Grand Finalist at the 2009 World University Debating Championships and Runner-Up at the 2008 Australasian Intervarsity Debating Championships.

Sets out the principal aims of the criminal justice system as a framework for engaging with a wide range of debates. Explores key concepts and principles for justice debates.

Presented as session 3 in the 1st Principles Series.

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  • Can anyone suggest a reason why half are blue and half black?
  • Prevent Crime & Make Society Safe What are they? Wipe In… What do each of these mean? P = Punishment of Cirmina, P2 = Protection of Scoiety from further acts by a dangerous criminal D2 = P1: Jail, Fine, Community Service, etc P2: Lock UP, Restraiing Order D: Something really unpleasant that limits peoples freedoms so others won’t want to do - often if the punishment is more severe that increases the detrerant. BUT, it also suggests that some punishments might be more effective in deterring particular types of crime. E.g. death penalty for attempted suicide bombers is actually perhaps a LESSER Detterant as they’re still martyrs! R: Australian Jails, There is nothing sacred about this list, but it is an important and useful framework for debating about justice because together these really do cover pretty much everything you would want to talk about. Why are each of these important? Punishment - A matter of proportionality. Sense of Justice of Society (we’ll talk more about this later on.) Rights can be taken away as they are granted. Punishment - Victim’s Justice. Incredibly important to consider here Protection - from people repeating the crime: murder of passion vs hit man. Test Questions: For most crimes, the law enshrines much harsher penalties for repeat offenders. Which of these principles would best be used to justify that? Answer: Best Answer A & B, then C, then D Protection of Scoeity
  • Longer and harder Isolate, More brutally Punish or dehumanise, harder it is to integrate back into society
  • In this scenario, punishment and protection factors are high (because the criminal will not leave prison for a long time), but rehabilitation is very low (in part because neither the criminal, nor the state, have much incentive) and deterrence is medium (since most criminals don’t expect to get caught, deterrence is always less than we might hope, which is why there is no statistically proven link between the use of the death penalty a reduction in associated crimes).
  • In this second scenario of a moderate term of imprisonment (say 10 years) you naturally see a significant decrease in the level of punishment. But protection is only slightly lower because there is a large increase in rehabilitation, which helps to off-set some of the loss of ‘protection’ because of the far lower likelihood of re-offence. Deterrence is also a little lower, but again, deterrence is already substantially lower than most people realise to begin with because any level of jail time generates a certain base level of deterrence, but there is not a linear relationship between increased lengths of jail time and increased levels of deterrence.
  • Punishment AFF:Will be better: can balance punishment with protection, so lighter jail sentence, allow release slightly earlier NEG: Unfair, they have served their time, just like any other criminal Retrib (Victims) AFF: Won’t see re-offend, crucial for victims seeing system failing NEG: If these means will be released earlier with only a flimsy tracker, ridiculous Protection AFF: Will protect better NEG: Won’t work, false protection - veneer Deterrance (less important here) AFF: NEG: Rehabilitation AFF: Will allow more trust as tracked, will help them control themselves knowing constantly monitored NEG: Massively harmful by branding them. Will make them feel cut out and different (hence more likely to reoffend) and will make them targets for vigilantes
  • Criminals lose their rights, but no one ever loses all of their rights Most groups have advocates, for unborn babies, for the disabled etc, or can advocae for themselves… This is not so much the case for prisoners.
  • Discussed with Amit, more important is to look at this; To put that another way, without government we would have anarchy (the state of nature) – I mean that in the literal sense of people being able to do anything they liked because there would be no such thing as ‘laws’. Under a system of anarchy we would have ultimate freedom, we can kill, steal, cheat, and no institution would seek to prevent it or punish it. But anarchy is also dangerous for obvious reasons. If I can kill you without consequence, then you can also kill me without consequence, and that’s not a great position for me to be in unless I’m a lot stronger than everyone else (which unfortunately I’m not). So it makes sense to make deals with people for mutual protection – you help protect me and I’ll help protect you. The social contract is the idea that the whole reason for the existence of government is because it functions as one big mutual protection society. We all give up option of killing each other without consequence, in exchange for the protection of the group against those who might refuse to be part of the deal or to try to cheat.
  • � When seen in isolation, the impact of a single drug offence – importation of a bag of marijuana, or a few hundred ecstasy tabs - doesn’t really justify the death penalty. Even in instances where these drugs result in the death of the user, that’s usually not intended – since dead drug users make terrible customers – and in any case the ‘victim’ was an accessory to the crime by purchasing an illegal substance. But to view drugs in this way would be to ignore the pervasive social impacts of drugs, which are the real reason why responsible governments have responded by instituting the harshest punishment, and strongest deterrence available � . � Drugs don’t just injure people, they damage societies. It fuels crime, funds corruption, turns family members against each other and creates ghettos and no-go areas in our cities. Each of these is a harm of its own, but in total drugs rob people of their sense of safety and personal security, which is the single most important obligation of the state. Without a broad sense of trust and security, the social capital of our societies is eroded, and our ability and willingness to pursue our other rights is dramatically reduced. Property rights are meaningless in suburbs where addicts regularly break into homes looking for ways to fund their addiction. Freedom of movement and association is meaningless if you’re too scared to use public transport or venture into the city at night � . � When seen in this way, the potential harm of drugs is very high, and avoiding what amounts to a fundamental break-down of society’s rights is justification enough for severe punishments. The comforting sense of security you feel on the streets of Singapore is evidence enough for the effectiveness of appropriately strict punishment for drug offences � .
  • While it may be true that crime rates are generally low and have remained that way for many years, it’s also true that in the public imagination the opposite is true. Tabloid media (like Today Tonight and the Herald Sun) play up the crime rate to boost their ratings, and politicians (especially Conservatives, but Opposition parties generally) also have a vested interest in heightening public fears about crime. Surveys consistently show people have a distorted view of the prevalence of crime, especially serious crime, despite very little evidence to support such views. Similarly, there is a widespread public perception that the punishment meted out to convicted criminals is too lenient, and that judges are ‘out of touch’ with public expectations about sentencing. Again, neither of these things is actually true but it’s a persistent myth and governments have an obligation to respond to those fears.
  • 1) How so? And that’s a problem because if peopdl don’t feel safe to exercise their rights it’s not exactly like the governmnet is supporting them. E.g. if people are too afraid to go out at night because they believe the streets are unsafe, their freedom of movement is serverly limited 2) Why are Vigilantes bad? 3)These ideas were embodied in the so-called � broken windows � theory of crime prevention propounded by Wilson and Kelling, and enacted by New York City’s former mayor Rudy Giuliani in what he called � zero tolerance � policing. Boiled down, zero tolerance means cracking down harshly on minor crimes such as littering, graffiti and minor property damage (like broken windows) because of the belief that tolerance of these lesser offences undermines the social conventions that discourage more serious crime. Streets covered in graffiti and litter, neighborhoods in disrepair, are places where people feel very unsafe, even if they’re actually not. Why does this perception matter? Well it matters because a seemingly permissive attitude towards crime might encourage more serious crimes, but also because honest, decent people will flee these kinds of neighborhoods, reducing them to ghettos and further increasing the likelihood that these places will descend into crime and dysfunction.
  • e.g. Culpable Driving, up from . In 1998-99, 54% of culpable drivers were jailed, but in 2005 the figure was 77%, a massive increase. 3. Is for a ‘mandatory sentencing type debate’ which we’ll discuss more in sentencing. is also untrue. Last year a team of Melbourne Uni researchers released the findings of a two-year study into community standards on sentencing. They gathered groups of people from across Victoria and presented them with all the evidence and testimony of four real-life serious crimes, but didn’t tell them the sentence handed down by the court. In three out of four cases the community juries handed down sentences that were, on average, less than those actually imposed.3 Basically, when the public is fully informed about the circumstances of a given crime, they tend to be more forgiving than judges. Unfortunately the media doesn’t fully inform people of all the facts, they summarize the crime and focus on the most lurid and distressing elements. No wonder public perception is so off the mark
  • It works - how? By tackling the causes… -Poverty or Low Skills -> provide opportunity to educate -Attitude -> Psych counselling -Medical Issues -> Treat -No support networks -> Help introduce to what’s available EXAMPLE: VICTORIA In 2000 the Victorian Government initiated a $334.5m program designed to boost rehabilitation of prisoners – it included three new prisons (to reduce overcrowding), community corrections (e.g. at home detention and ‘half-way houses’ like the Judy Lazarus Transitions Centre5), specialist Koori courts and diversionary programs for drug offenders. The result of that program is that Victoria now has a prison population that is half the size of NSW (who have followed a strict ‘tough on crime’ approach) on a per capita basis.6 Reduces future crimes: Big deal - 800 criminals released every day (30,000 per year) in Australia Saves costs: Prisoners costs something over $100,000 each per year
  • Finally, remember that safeguards such as judicial discretion over sentencing, and rigorous appeals processes exist for good reason. Judges are highly trained and are well equipped to dispassionately assess the fairest punishment for a given crime. Each crime should be assessed individually, on their specific merits, since every crime is different. People who favour mandatory sentencing of any variety seem to ignore the fact that different criminals have different levels of culpability, different levels of remorse and different likelihoods for rehabilitation. It doesn’t make sense to treat them all the same, and more importantly, it doesn’t work. As Tony Blair used to say, we need to tough on crime, but also tough on the causes of crime � . e.g. hot blooded murder vs contract killer (only one recorded each) who is more of a trheat to society? Who is likely to be harder to rehabilitate? Koori Courts - Sentences that actually mean something to them, with culturla relevance
  • Debates: everyone govt funded lawyer Adversarial: Rape victims on adversarial system Many European Countries.
  • Prostitutes are victims Prosecture the people who run brothels, who pimp, the client who solicits prostitutes
  • To shelter somewhat from prison, Concept: tell them what they should be, rather than what they are Skiing analogy
  • Fine or not, how much? Arrest or not? Press charges or not? SQ - Significant operational discretion is permitted Why? Don’t waste resources, Get Information, Don’t break families, Zero Tolerance Broken Windows Community Policing Community work with, Neighbourhood Watch, Community Informants, liaisons etc Indian Communities Sudanese HAVE TO TRUST THE COPS FOR IT TO WORK During Hurrican Katrina, cops were saying get out, African - Americans didn’t believe, some did.
  • Common Things - Theft, Murder, General prohibitions against assault, and rape. BUT, Some are very different - Gay Sex! Rape in Marriage! Abortion. Adultery. Drinking Alcohol. Drugs; Netherlands At Fault Divorce; Should there be Universal Standards?
  • 1st Principles: Criminal Justice

    1. 1. 1st Principles: JUSTICE Victor Finkel
    2. 2. Topics: <ul><li>That we should elect our judges </li></ul><ul><li>That we should bring back the death penalty </li></ul><ul><li>That we should have mandatory sentencing for repeat offenders </li></ul><ul><li>That we should abolish trial by Jury </li></ul><ul><li>That paedophiles should be forced to wear tracking devices </li></ul><ul><li>That we support at-home detention for juvenile offenders </li></ul>
    3. 3. The CJS Decide on appropriate application of penalty range Sets parameters within which judges can decide Sentence Determines if a breach of the law occurred - Sometimes interprets the law when it is not clear Judiciary - Identify potential breaches of the law - Police - - Decide what is a crime by making law Legislature Ascertain Guilt Investigation Define Crime ask group
    4. 4. AIMS of the CJS <ul><li>Prevent Crime </li></ul><ul><li>Make Society Safe </li></ul>
    5. 5. AIMS of the CJS <ul><li>Punishment / Retribution </li></ul><ul><ul><li>of the criminal / for society & the victims </li></ul></ul><ul><li>Protection of Society </li></ul><ul><ul><li>From repeat offences </li></ul></ul><ul><li>Deterrence </li></ul><ul><ul><li>Of similar acts </li></ul></ul><ul><li>Rehabilitation </li></ul><ul><ul><li>Of the criminal </li></ul></ul><ul><li>PROPORTIONALITY </li></ul><ul><li>A useful concept for examining these with reference to other legislation </li></ul>
    6. 6. Balancing the Aims <ul><li>Do the Aims ever Clash? </li></ul>
    7. 7. Balancing the Aims (2)
    8. 8. Balancing the Aims (3)
    9. 9. Balancing the Aims (4) <ul><li>What about the Dealth Penalty? </li></ul><ul><li>Reality of Deterrence is that it is limited </li></ul><ul><ul><li>Rationality </li></ul></ul><ul><ul><li>Incrementally Different </li></ul></ul>
    10. 10. Balancing the Aims (4) <ul><li>Most debates about Criminal Justice are about balancing these aims. </li></ul><ul><li>This means </li></ul><ul><ul><li>showing the impact of the policy on each of the aims AND </li></ul></ul><ul><ul><li>Explaining which particular aims are more important in this case and WHY. </li></ul></ul><ul><li>Eg: “That convicted paedophiles should be forced to wear tracking devices for the rest of their lives” </li></ul>
    11. 11. GOING TOUGH ON CRIME <ul><li>This section is about how to take the Punishment/Retribution and Protection side first and foremost. </li></ul><ul><li>Two things need to be done: </li></ul><ul><ul><li>Show why punishment is necessary </li></ul></ul><ul><ul><li>Show why punishment is proportional and appropriate </li></ul></ul>
    12. 12. The Rights of Criminals <ul><li>Criminals lose rights </li></ul><ul><ul><li>Presion: Freedom of association, of speech, of movement, of voting (in some countries) </li></ul></ul><ul><li>Though no one loses all </li></ul><ul><ul><li>Right of appeal, to a fair trial, adequate representation, freedom from torture </li></ul></ul><ul><li>How justify taking away? </li></ul><ul><li>Note: Once taken away, very few people out there advocate bringing them back! </li></ul>
    13. 13. Concept: The Social Contract <ul><li>Where do rights come from? </li></ul><ul><li>Social Contract Theory: </li></ul><ul><ul><li>Rights are a construct of a contract </li></ul></ul><ul><ul><li>We give up rights to do whatever we want </li></ul></ul><ul><ul><li>In exchange for protection from people doing whatever they want to us </li></ul></ul>
    14. 14. Harsh Punishment: Proportionality <ul><li>Devastating Impact on Individual Victims </li></ul><ul><ul><li>Rape, Murder, Paedophiles </li></ul></ul><ul><li>How deal with offences such as Drug Trafficking, Property Crime, where impact on individuals may be lesser? </li></ul><ul><li>Answer: Devastating Impact on Society </li></ul><ul><li>eg: “That we should have the death penalty for drug traffickers” </li></ul>
    15. 15. Harsh Punishment: Neccessity <ul><li>Establish a problem that needs fixing </li></ul><ul><li>Issue: Crime rates are falling in most developed countries </li></ul><ul><li>Answer? Lie? NO! </li></ul><ul><li>PUBLIC PERCEPTION </li></ul>
    16. 16. Public Perception <ul><li>Feeling unsafe inhibits ability to excise rights </li></ul><ul><li>When justice appears inadequate people take justice into their own hands - Vigilantes </li></ul><ul><li>Concentrates crime due to demographic change (Sometimes) </li></ul><ul><ul><li> - Broken Windows Theory </li></ul></ul><ul><ul><li>e.g. New York </li></ul></ul>
    17. 17. GOING SOFT <ul><li>How to focus on Rehabilitation </li></ul><ul><li>Why matters? </li></ul>
    18. 18. Combating Perceptions <ul><li>Numbers: Crime Rates are falling across Australia and most parts of the developing world </li></ul><ul><li>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 </li></ul><ul><li>Judges out of Touch: When people know the full facts of the case, are often more lenient than judges - Melbourne Uni Study </li></ul>
    19. 19. Rehabilitation reduces Crime! <ul><li>It works - example: Victoria </li></ul><ul><li>It reduces suffering associated with future crimes </li></ul><ul><li>Saves government extremely high costs of incarceration (people in prison) </li></ul>
    20. 20. We need Rehab to work!
    21. 21. Where does Rehab Work Best? <ul><li>How does Rehab work? </li></ul><ul><ul><li>Changing Mindset </li></ul></ul><ul><li>Where does this work best? </li></ul><ul><ul><li>Prison programs </li></ul></ul><ul><ul><li>Diversionary Centres </li></ul></ul><ul><ul><li>Community Outreach </li></ul></ul>
    22. 22. Factoid: SENTENCING <ul><li>Our system preserves significant judicial discretion in sentencing </li></ul><ul><li>Safeguard </li></ul><ul><li>To meet aims of justice system, each person needs to be dealt with differently </li></ul><ul><li>“ Tough on crime, but also tough on the causes of crime.” </li></ul><ul><li>Factoid-within-a-Factoid: Victim Impact Statements? </li></ul>
    23. 23. Factoid: LAWYERS <ul><li>The Australian legal system is ‘ADVERSARIAL’ </li></ul><ul><li>This means that judges and juries can only decide on what is presented to them in the court. </li></ul><ul><li>Thus, Lawyers are crucial </li></ul><ul><li>There is such a thing as a good lawyer and bad lawyer -> what does this say about our Justice system? </li></ul><ul><li>Alternative: INQUISITORY </li></ul>
    24. 24. Factoid: JURIES <ul><li>Most serious felonies are tried by Jury </li></ul><ul><li>Panel of 12 “Average Reasonable People” called to serve </li></ul><ul><li>Panels are vetted by lawyers </li></ul><ul><li>Role of Judges: </li></ul><ul><ul><li>direct juries on matters of law and inadmissable evidence. </li></ul></ul><ul><ul><li>Set the sentence </li></ul></ul><ul><li>Why do we have Juries? </li></ul><ul><li>Are juries an accurate reflection of society? </li></ul>
    25. 25. Factoid: LEGALISING vs DECRIMINALIZING <ul><li>LEGALISING </li></ul><ul><ul><li>Totally acceptable </li></ul></ul><ul><ul><li>No related offences </li></ul></ul><ul><ul><li>Benefits: Frameworks, government standards </li></ul></ul><ul><li>DECRIMINALISING </li></ul><ul><ul><li>There’s not really a legal process </li></ul></ul><ul><ul><li>BUT, focus on the ‘actual’ criminals </li></ul></ul><ul><ul><li>Benefits: Keeps it illegal, but doesn’t stomp on the pawns </li></ul></ul><ul><li>Example “That we should decriminalise the act of prostitution” </li></ul>
    26. 26. Factoid: PRISONS <ul><li>Are prisons effective at Rehabilitating people? </li></ul><ul><ul><li>Isolation from Society </li></ul></ul><ul><ul><li>Bad Influences </li></ul></ul>
    27. 27. Factoid: YOUNG PEOPLE <ul><li>Minors are treated differently by the law </li></ul><ul><ul><li><10, cannot be criminally liable </li></ul></ul><ul><ul><li>10-14 in between </li></ul></ul><ul><ul><li>14 - 18 can be held criminally liable </li></ul></ul><ul><li>Emphasis on Diversion </li></ul><ul><li>Concept: Labelling </li></ul><ul><li>Juvenile Detention as Last Resort </li></ul>
    28. 28. Factoid: VOTING <ul><li>In Australia: </li></ul><ul><ul><li>You cannot vote while in Prison </li></ul></ul><ul><ul><li>However, you can vote if you are a convicted criminal, just not in prison, or have been released </li></ul></ul><ul><ul><li>Thus, whether you lose the right to vote or not is up to random chance for shorter gaol sentences. </li></ul></ul><ul><li>In America </li></ul><ul><ul><li>? </li></ul></ul>
    29. 29. Factoid: POLICING <ul><li>Significant operational discretion is utilised </li></ul><ul><li>Why? </li></ul><ul><li>Harms of Discretion </li></ul><ul><li>Zero Tolerance </li></ul><ul><li>Community Policing </li></ul>
    30. 30. Factoid: HOW DO SOCIETIES DECIDE WHAT IS A CRIME <ul><li>What constitutes a crime is a relative concept </li></ul><ul><li>Between societies </li></ul><ul><ul><li>There are some common crimes </li></ul></ul><ul><ul><li>There are some different crimes </li></ul></ul><ul><li>And some change with time </li></ul><ul><li>CLASH is UNIVERSAL RIGHTS vs MORAL RELATIVISM </li></ul>