This article was first published in the March 2008 issue of the Barrister Magazine.
What is the purpose of the criminal justice system?
'The purpose of the Criminal Justice System... is to deliver justice for all, by convicting and punishing the guilty and helping them to stop offending, while protecting the innocent.'
Or consider the following, from Working Together to Cut Crime and Deliver Justice, the criminal justice strategic plan published in November 2007:
'The central purpose of the Criminal Justice System is to deliver an efficient, effective, accountable and fair justice process for the public.'
A similar tone was set by the 'Policy Green Paper' published in early March 2008 by the Conservative Party, entitled 'Prisons with a purpose'. Replete with crime control aspirations, the paper observed, in relation to prisons:
'Prisons should reduce crime in three principal ways: by incapacitating offenders, by punishing and thereby deterring others who would commit crimes, and by rehabilitating offenders.'
The main challenge was that of making the prisons system and the processes associated with dealing with prisoners more effective and efficient.
With their appeal to a utilitarian efficiency and an instrumental logic - protecting the innocent and punishing the guilty - these statements offer a picture of criminal justice as being in the business of crime control. The challenge is one of effectiveness.
A rather different note was struck by Jack Straw in his first major speech as Lord Chancellor in July 2007. What was 'fundamental to the welfare and happiness' of citizens, he argued, was strong public institutions, properly managed, 'and above all whether all... citizens, poor or rich, low or high got justice against the powerful, and the state.' He went on to draw out the implications for the justice system:
'We are blessed in the United Kingdom by a judiciary whose integrity, independence, professionalism and skill are not in question. But we take such a condition for granted at our peril. Justice is a delicate plant. It has to be nurtured, protected, cared for.'
The justice system on this account presents a bulwark against the potentially overweening power of the state and other vested interests. A concern for due process, checks and balances, core values and an underlying institutional strength inform this perspective, rather than the pragmatic appeal to the effective and efficient control of crime.
It was the American legal scholar Herbert Packer who first proposed that the competing logics of 'crime control' and 'due process' exercised varying influence on the operations of the US criminal justice process. Under the crime control model, the underlying logic of the criminal justice is to contain and repress criminal behaviour. Successful criminal detection, prosecution and conviction are hallmarks of an effective criminal justice model. The due process model, on the other hand, places at least as much emphasis on protecting the rights of the innocent as it does on convicting the guilty. The protection of individual liberty in the face of a potentially over-powerful state is a key preoccupation of the due process model.
Packer's contrast between crime control and due process was developed in the context of the US criminal justice process. Yet it is possible to consider recent debates on criminal justice in England and Wales in the categories he developed.
Of course crime control and due process logics are not pristine and mutually exclusive. The very fact that Jack Straw can both express due process concerns, while also being a senior minister responsible for the implementation of the government's criminal justice strategy suggests as much.
But disputes between crime control and due process considerations tend also to boil down to questions of degree and emphasis. Crime control advocates might argue that a misguided attachment to certain protections historically afforded to suspects hampers convictions. But the principle of appropriate protections is not, generally, denied. Due process advocates might champion enhanced protections for suspects in police custody. But one would have to search hard to find someone who would oppose any questioning of suspects in police custody.
The debate over the appropriate balance between due process protections and the crime control imperative, in other words, tends to be dominated by disagreements of a largely procedural kind. Such procedural debates are obviously vitally important. A society that shows indifference to the processes by which those deemed to have breached the laws of the land are dealt with is unlikely to be a society in which the rights of individuals are respected.
But on their own, procedural debates offer little insight into the social context and political-economic structures within which the criminal justice process operates. In order to explore this question, consider the following definition of criminal justice, taken from Andrew Sanders and Richard Young's standard textbook on the subject. Criminal Justice, they write:
'is... a complex social institution which regulates potential, alleged and actual criminal activity within procedural limits supposed to protect people from wrongful treatment and wrongful conviction'.
Criminal justice practices, they go on to note, 'are inherently coercive'. This focus on criminal justice as a set of often coercive social regulatory institutions, and not merely a collection of 'crime fighting' agencies, throws a spotlight on the broader social purpose of criminal justice, rather than merely considering its operations within the framework of a fight against crime versus the protections afforded suspects.
But then criminal justice, as a social regulatory set of institutions, operates within a society characterised by notable inequalities in wealth and power. What is the implication of this for the operations of criminal justice? For Sanders and Young they are very clear. '[I]n a society in which power, status and wealth are unequally distributed along lines such as age, gender, race, and class, much criminal justice activity will compound wider social divisions,' they write. They go on to argue that the 'enforcement of the criminal law... reinforces a hierarchical social order which benefits some while disadvantaging others.'
Now Sanders and Young are hardly red in tooth and claw revolutionaries. Their scholarship sits squarely within the parameters of liberal critique. But while liberal scholarship has many strengths, it also has its limitations. Take, for instance, the perspective set out by the Marxist political scientist Ralph Miliband over thirty years ago, on the differences between a liberal and a Marxist view on the nature of social conflict and its resolution:
'In the liberal view of politics, conflict exists in terms of "problems" which need to be "solved". The hidden assumption is that conflict does not, or need not, run very deep; that it can be "managed" by the exercise of reason and good will, and the readiness to compromise and agree... The Marxist approach to conflict is very different. It is not a matter of "problems" to be "solved" but of a state of domination and subjection... Ultimately, stability is not a matter of reason but of force... and the notion of genuine harmony is a deception or a delusion.'
The reason for quoting Miliband's analysis is that it implies a rather different take on the purpose and nature of criminal justice. From a Marxist perspective - at least if we take Miliband as the reference point - the purpose of criminal justice might be characterised as the ongoing maintenance of class domination by means of coercive force, legitimated by legal norms. Thus, of the four functions of the capitalist state identified by Miliband the first of them is the maintenance of law and order; what he dubs 'the repressive function'. The 'state is always involved' in the processes of criminal justice, Miliband argues, if only because it defines the nature of `legal norms and sanctions'.
It is not necessary to subscribe to Miliband's politics, nor Sanders and Young's liberalism, to acknowledge the critical purchase they offer to an understanding of criminal justice. In different ways they pose the challenge to take seriously the relationship between social structures and social processes on the one hand, and normative principles in relation to criminal justice on the other.
A concern with the appropriate principles and priorities that guide the operations of the criminal justice process remains an important and necessary task. But a theory of criminal justice that does not take seriously the ways in which criminal justice might both regulate and manage underlying social antagonisms is likely ultimately to lead to bad policy and dubious outcomes.