What should be the goals of the criminal justice system?

Richard Garside
Tuesday, 6 November 2007

The Centre's director Richard Garside spoke at an ESRC-funded seminar on 'Regulation and criminal justice'. He was responding to a paper by Professor Andrew Sanders on the purpose of the criminal justice system.

One of the advantages of being a respondent in circumstances such as these is that one has licence to dissect and critique someone else's work, without having had to go to the time and trouble of writing a fully fledged paper. So if I do use the short time that I have this afternoon to highlight what I think are some of the problems with Andrew's paper, I would like to say that I very much welcome it as a thoughtful and stimulating attempt to unpack the many apparently competing goals ascribed and applied to the contemporary criminal justice system.

I found Andrew's discussion of Packer's concepts of due process and crime control, and Ashworth and Redmayne's competing human rights model illuminating. Understanding due process considerations as a restraining principle on the logic of crime control, rather than viewing crime control and due process as competing criminal justice models makes a lot of sense. Some of the weaknesses of the human rights model are also highlighted well by the paper.

Andrew's proposed 'freedom' model of criminal justice as a means of resolving the apparent problems of goal prioritisation is also a provocative suggestion deserving of critical reflection. Like many others, I first came across this proposal when I read Andrew and Richard Young's excellent text book on the criminal justice system a few years ago. At the time I found it to be an intriguing suggestion, though one that I also found less than convincing. I will try to explain my reasons for being unconvinced by this model shortly. I thought I would start, however, by drawing out what I consider to be some of the implications of Andrew's definition of criminal justice.

In his paper Andrew defines criminal justice as 'legal State-coercion'. This definition has the great advantage of being succinct and challenging at the same time. It focuses attention on what might be considered the functional role played by criminal justice in a capitalist society such as Britain, rather than on the bureaucratic, internal processes of criminal justice. It is, in other words, a sociological and 'political', rather than a technocratic, definition. As such, it provides the basis for thinking critically about the regulatory role played by criminal justice, allowing us to cut through much of the mystification surrounding criminal justice currently perpetuated by the Home Office and other governmental bodies.

To draw out the implications of this, I want to take us on what might appear to be a slightly irrelevant digression into a consideration of competing political theories. In Marxism and Politics, published some thirty years ago, Ralph Miliband made the following observation about 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 two very different perspectives on the specific question posed by Andrew's paper - that relating to the goals of criminal justice - as well as on the broader questions of this seminar series - those relating to the regulatory role of criminal justice, and its relationship to other regulatory mechanisms such as the education, health and social security systems.

From a Marxist perspective - at least if we take Miliband as the reference point - the goal 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 points out, if only because it defines the nature of 'legal norms and sanctions'.

There are some superficial similarities between this account and Andrew's definition of criminal justice as 'legal State-coercion'. But also some important differences, the most obvious one being the absence of an explicit class analysis in Andrew's account. Andrew hints at this in places in his paper. He points out that of the various frauds that might be perpetrated, it is only social security fraud that attracts a punitive response. 'Significantly,' Andrew notes, 'the criminals in question are... largely poor and marginalised'. But this observation is found in a footnote and this insight is not integrated into his overall analysis.

Andrew also observes, right at the end of his paper, that 'the poor, marginalised and socially excluded... suffer most both as victims and as those against whom coercive powers are most used'. But this is made in the context of the argument in favour of the freedom approach to criminal justice; the point being that the poor and marginalised would benefit most if the freedom approach were applied. I think there are good reasons for being, at best, sceptical of this assertion and it is something to which I return.

So while in his basic definition of criminal justice Andrew shares some common ground with what might be considered a radical, or Marxist, position on criminal justice, in practice his position would best be characterised as liberal. I use liberal here as a descriptive term, not a derogatory one. It is a depressing peculiarity of contemporary Anglo-American political discourse that 'liberal' so often appears to be used as a term of abuse rather than approbation.

In keeping with this liberal approach, criminal justice is portrayed as a technical set of responses for dealing with an identifiable problem of modern society: crime. Thus Andrew cites a number of possible criminal justice goals, including the 'prevention of crime'; the 'reduction of re-offending'; 'bringing offenders to justice'; 'respecting victims and witnesses' and 'protecting the innocent'. In some ways it is a 'trite' list, Andrew argues, because 'who could disagree with' it?

I suspect a number of people would in fact disagree with this list of goals. Louk Hulsman would be one of those. More than twenty years ago he observed that 'actual criminalisation of criminalisable events... is a very rare event indeed... Non-criminalisation is the rule, criminalisation the rare exception.' . If this is the case - and the attrition data would suggest that it is - one does have to ask whether many offenders really are brought to justice. Leaving aside the definitional problems around notions of `the innocent' one would also have to ask whether most victimisation does not in reality go unaddressed.

I would imagine, too, that those scholars associated with the social harm perspective, such as Paddy Hillyard, Dave Gordon, Christina Pantazis and Simon Pemberton, would also disagree with Andrew's list, for reasons that intersect somewhat with Hulsman's perspectives, but also move beyond them.

Beyond this is the tradition of critical criminological scholarship; the work of writers such as Steve Box, Pat Carlen, Barry Goldson, Stuart Hall, Phil Scraton and Joe Sim, to name but a few. In different ways they have sought to show how the claims made for criminal justice mask more than they reveal; that the coercive nature of criminal justice is rather more significant than its crime fighting appearance would lead us to believe.

My point here is not simply to list a load of people who might disagree with Andrew. It is rather to argue that part of the challenge of thinking about the role of criminal justice as a set of regulatory practices is to take seriously and develop Andrew's definition of criminal justice as 'legal State-coercion'. My own sense is that there is something of a disjuncture between Andrew's definitional starting point and his discussion of criminal justice goals, which reduces his paper's critical edge.

I now want to turn briefly to Andrew's proposal regarding the freedom approach to criminal justice. Viewing the goal of criminal justice as being about the protection and enhancement of freedom, Andrew argues, would in principle address the problem of deciding between the various possible competing criminal justice goals. 'All we have to do', he writes, 'in relation to any one incident or problem, is to prioritise the goal that is likely to enhance freedom the most'.

There is an obvious attraction to this proposition, not least of all being that it appears to offer a way out of the rather sinister current tendency to reduce down criminal justice choices to the question of whether one is on the side of the victim or the suspect. Under the freedom approach, Andrew argues, 'the freedom of victims as well as the freedom of people accused of crime is valued'. This, in Andrew's words, 'unashamedly utilitarian' approach therefore seeks to quantify the various possible harms and benefits of a particular criminal justice intervention, based on a calculation of the degrees of freedom and unfreedom that would accrue to the various parties involved.

It is certainly possible, were such an approach to be operationalised, that certain punitive policies currently in force would be discontinued and more cost-effective, and just, policies introduced. But it does not necessarily follow. Utilitarian arguments can be used to deny freedoms as well as enhance them. Moreover, as Desmond King has documented, in his study of British and US social policy in the 20th century, all sorts of illiberal polices can be justified in the name of liberalism.

But whether such an approach to criminal justice is operational in practice is at least worth asking. It is far from clear, for instance, how the differential freedoms and unfreedoms of individuals would be calculated. Were a budding footballer to be assaulted, leading to a career-threatening broken leg, would this reduction in his freedom to pursue his interests count for more than a similar attack on a bedridden pensioner who in practice would not experience any loss of freedom? Would a prolific burglar with five children be spared imprisonment because of the loss of freedom of her children to enjoy her company. That would hardly seem fair to a single burglar with no dependants, imprisoned for six months. Would a fraudulent large corporation with tens of thousands of employees receive lenient treatment because of the negative impact of punitive sanctions. Where would that leave the devastating loss of freedom to enjoy their assets faced by many thousands of financially ruined investors?

One of the reasons why the kind of utilitarian approach advocated by Andrew might be difficult to operationalise in practice is because individuals' experience of and relationship to those harmful acts currently defined as crime, as well as their experience of the criminal justice process, are profoundly influenced by the very real inequalities of wealth, opportunity and power that are a feature of contemporary British society. The apparently level playing implicit to the freedom/unfreedom continuum does not in fact exist.

Andrew acknowledges the implications of these inequalities in passing, in his discussion of Conor Gearty's analysis of human rights. Respect for human rights includes a respect for human dignity, Gearty argues. To quote from Andrew's paper, '[d]ignity involves... real choice (which requires a certain minimum level of education, health, resources etc), and the liberty to pursue these choices'. But he does not, in my view, take this point seriously enough, nor integrate it into his own analysis of criminal justice in general, and the freedom model in particular.

To understand what the kind of minimum levels invoked by Gearty involve, we might turn to that quintessential liberal political philosopher John Rawls. In his introduction to his 1996 book, Political Liberalism, Rawls outlined what he considered to be the necessary institutional arrangements that would allow citizens genuinely to exercise their freedoms within a liberal democratic context. In summary these were:

  • Public financing of elections and the provision of genuinely impartial and independent information on policies to the electorate;
  • Equality of opportunity to ensure that all citizens can partake of and contribute to public debate;
  • A `decent' distribution of income and wealth to ensure that all citizens can partake of basic liberal freedoms;
  • Society as employer of last resort, to ensure that all citizens have the opportunity for meaningful work;
  • Basic health care for all.

`To anyone familiar with contemporary political conditions in liberal capitalist societies such as the United States and Britain,' the political philosopher Alex Callinicos has observed in relation to Rawls' list, 'these requirements will seem wildly utopian'. But as Callinicos goes on to point out, this recognition should be a spur for critical reflection, rather than for dispirited acquiescence. In particular, it requires us to offer 'some account... of the relationship between abstract norms and the historical conditions of their realization'.

The implications for our current discussion is a requirement 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. For in a society where the ability to exercise formal freedoms are highly determined by the realities of poverty and inequality, a theory of criminal justice that does not engage with broader political economic questions will ultimately be abstract and utopian. By doing so this would also open up greater opportunities to consider the regulatory role that criminal justice plays in a society so marked by inequalities of power, wealth and opportunity.