One of the first things I learnt or memorized in BP debating (apart from attaching ‘principle’ to almost every argument and the social contract theory) were the aims of the criminal justice system (CJS); retribution, rehabilitation, protection and deterrence. And this represents how a lot of debaters approach debates on the criminal justice system, with each team trying to show how they achieve more of these aims than the other team. All of these are important, but what is more important is the realization that the criminal justice system is multifaceted and more complex, and the above may merely be aims of punishment and not the entirety of the system. An understanding of how the principles underpinning the criminal justice system debates play out and interact with each other is pivotal to understanding criminal justice debates and making solid arguments.
WHAT IS THE CRIMINAL JUSTICE SYSTEM?
- It refers to a complex network of institutions, policies, agencies and processes aimed at determining, deterring and mitigating crime, and sanctioning the commission of crime. The criminal justice system usually comprises of;
- those who criminalize an act (or omission); usually the parliament or the legislature
- those who detect the commission of a crime (may be the police or even the society at large)
- those who decide the extent of the criminality and the punishment (usually the court system)
- facilities for the enforcement of punishments (prison systems, correctional facilities, rehabilitation facilities)
WHAT ARE DEBATES ON THE CRIMINAL JUSTICE SYSTEM ABOUT?
There are usually a lot of clashes of principles in criminal justice debates. Some of these clashes may be on;
- The aims and purposes of CJS
- Rights (of the accused, victims and society)
- Appropriateness of sanctions
- Efficiency of sanctions
However, theirbottom-line is to interrogate the notion of justice.Proceeding from this fact, criminal justice debates can be said to revolve around two questions and both shall be tackled by this piece. They are;
- What are the factors that determine the criminalization of an act?
- What are the elements that determine the extent of punishment?
WHAT FACTORS DETERMINE A CRIME?
Crimes as we know them are wrongful acts punishable by a state or authority. There are different theories that guide the designation of crime and these are usually relevant in motions that speak to the criminalization or the decriminalization of a thing e.g. THW CRIMINALISE BLASPHEMY.Crime is usually viewed as deviant behavior that violates prevailing norms. But not all deviant acts are criminal. For example, in certain jurisdictions, homosexuality deviates from mainstream values, but is not a crime. The issue of what makes a crime is fluid and contentious.As cultures change and political environments shift, behaviours may be criminalized or decriminalized. The following are some elements/contentions in the designation of crime.
Underlying the operation of the crime and criminal law is a fundamental, yet challengeable, premise. It is that human actions are conceived as the product of free, rational choices on the part of the individual. This capacity for free and rational action taking effect in and on the natural and social world designates human beings as autonomous moral agents, that is as bearing responsibility for their actions whether good or bad. The premise has, then, direct implications for the relationship of the individual and state because it provides a potential basis by which to justify and evaluate a system of coercive rules and punishment for breach. Subjects, as rational, free human beings, have the choice whether to conform or not and are able, using rules as standards, to conduct their lives with the minimum risk of suffering interference. Punishment for breach can then be justiﬁed because, by offending, the individual (free and rational) is deemed have chosen to offend.
(II) The Harm Principle
The harm principle is one of the most commonly used principles in debates, and is also important to discussions on the criminal justice system.The harm principle can be viewed in two ways. Firstly, and this has a liberal appeal, is that the State has limited authority to coerce and punish. It may only do so to prevent harm to other people. Therefore, individuals should be allowed to do, say& think what they like so long it does not harm others. Harm to self is not enough, nor is upholding society’s moral values. They may smoke, or drink themselves to death. Therefore, this gives political priority to individual freedom from coercion rather than collective goods such as morality or welfare. On the other hand,the principle is necessary to identify what justiﬁes State coercion, namely harm prevention. Taken together the principle yields the following equation. Where freedom of action if restricted will maintain the autonomy and security of citizens, it is proper to curtail it e.g. the crime of dangerous driving. Driving a vehicle is lawful, albeit that it inevitably involves some risk of harm; however, freedom is curtailed to the extent that taking unjustiﬁed risks of causing harm while driving is subject to penalty.
(III) Universal Rights(liberalism) v Cultural Relativism (conservatism)
This clash is essential to an understanding of the variety that exists in modern notions of crime across countries. Universalism (often pushed based on liberal notions) refers to the idea that human rights are universal and laws -to the extent they exist to adjudicate the conflicts between people’s rights- should be universal as well. Cultural relativists on the other hand object, and often push the Conservative notion that (human) rights and thus laws, are culturally dependent, and that no moral values can be made to apply to all cultures.On the issue of crime and punishment, contemporary liberals and conservatives differ fundamentally based on their contrasting views of human nature, the nature of moral values, and the cause of criminal activity. Most liberals might believe that crime is a result of sociological and economic factors. Thus, society is held responsible for criminal behavior in having failed to provide for such individuals. In contrast, conservatives believe that humans have a natural capacity for good or evil and moral values need to be inculcated to guide this. The poor and deprived are not predestined to criminality, therefore, the individual is responsible for his or her criminal acts. These ideas on the nature of rights and the nature of man (to the extent that determines their propensity for crime) are powerful to bear in mind in CJS debates.
WHAT ARE THE ELEMENTS OF PUNISHMENT?
Punishment is usually said to have five recognized purposes which are; deterrence, incapacitation, rehabilitation, retribution & restitution.
Deterrence is aimed at preventing future crime by frightening the potential criminal or released felons. The concept of deterrence usually has two assumptions. The first is that specific punishments will deter offenders from committing further crimes, and the second is that the fear of punishment will deter others from committing such crimes. Deterrence and the important role it plays is usually an issue in debates that deal with increasing the punishment for a crime. The logic behind this is that the severity of punishment may alter the decision calculus of potential offenders, leading them to conclude that the risks of punishment are too severe. This is part of the logic behind “three strikes” and “truth in sentencing” policies, to utilize the threat of very severe sentences to deter some persons from engaging in criminal behaviour. Some research has shown that increase in punishment does not mean a decrease in crime, what decreases crime instead is an increase in the certainty of punishment, for example, the presence of some law enforcement agents on the roads increases the rate of seat belt usage and traffic law compliance. A problem with deterrence theory is that it assumes that human beings are rational actors who consider the consequences of their behavior before deciding to commit a crime; however, this is often not the case. For example, some state prisoners usually claim to have been under the influence of drugs or alcohol during the time of the offence. Therefore, it is unlikely that such persons are deterred by either the certainty or severity of punishment because of their temporarily impaired capacity to consider the consequences of their actions.
Incapacitation is aimed at removing the individual who has committed a crime from the society so as to prevent future crime. It is the most common response to criminals. It involves taking away a person’s freedom and liberties that they would ordinarily enjoy. Proponents of the incapacitation theory of punishment advocate that offenders should be prevented from committing further crimes either by their (temporary or permanent) removal from society or by some other method that restricts their physical ability to reoffend in some other way. Incarceration is the most common method of incapacitating offenders; however, other, more severe, forms such as capital punishment are also used. The overall aim of incapacitation is to prevent the most dangerous or prolific offenders from reoffending in the community. Incapacitation is often described as a reductivist (“forward looking”) justification for punishment. Reductivism is underpinned by the theory of utilitarianism, which maintains that an act is reasonable if its overall consequences are beneficial to the greatest number of people. Thus, the pain or suffering imposed on an offender through punishment is justified if it reduces or prevents the further harm that would have been caused to the rest of society by the future crimes of that offender. The concern here is with the victim, or potential victim. The rights of the offender merit little consideration. Incapacitation has long been a significant strategy of punishment. For example, in Britain during the 18th and 19th centuries, convicted offenders were often transported to Australia and America. The most severe and permanent form of incapacitation is capital punishment. Capital punishment is often justified through the concept of deterrence, but whether the death sentence actually deters potential offenders is highly contested. What is indisputable is that once put to death an individual is incapable of committing further offenses. Capital punishment is therefore undeniably “effective” in terms of its incapacitative function. Other types of severe or permanent incapacitative punishments include dismemberment for example the castration of sexual offenders. Less severe forms of incapacitation are often concerned with restricting rather than completely disabling offenders from reoffending. These include sentences such as disqualification from driving or curfews. So, according to this theory, punishment is not concerned with the nature of the offender, as is the case with rehabilitation, or with the nature of the offense, as is the case with retribution. Rather, punishment is justified by the risk individuals are believed to pose to society in the future. As a result, individuals can be punished for “hypothetical” crimes. In other words, they can be incarcerated, not for crimes they have actually committed but for crimes it is anticipated or assumed they will commit.
Rehabilitation seeks to prevent future crime by altering a defendant’s behaviour. The term “rehabilitation” means the process of helping a person to readapt to society or to restore someone to a former position or rank. However, this concept has taken on many different meanings over the years and waxed and waned in popularity as a principle of sentencing or justification for punishment. The means used to achieve reform in prisons have also varied over time, beginning with silence, isolation, labour, and punishment, then moving onto medically based interventions including drugs and psychosurgery. More recently, educational, vocational, and psychologically based programs, as well as specialized services for specific problems, have typically been put forward as means to reform prisoners during their sentence. Criminals being viewed as products of socioeconomic or psychological forces beyond their control enables this theory of punishment to be relevant.
Retribution prevents future crime by removing the desire for vengeance when victims discover that the defendant has been adequately punished. The only goal in retributive justice is punishment. Whether it deters or restores is immaterial. Proportionality is an important concept in retributive justice. This does not mean that the punishment has to be equivalent to the crime. A retributive system must punish severe crimes harsher than minor crimes, and the severity of the crime is usually determined by amount of harm and the moral imbalance it creates.
Restitution is concerned primarily with closure for the victims. It often punishes the defendants financially, that is pay, sanction the payment of money to the victim for the harm done. In other cases, restitutive systems might get the accused to restore (if possible) things taken away. Repairing damages, replacing stolen properties or income lost and in other case performing community service in a manner that provides closure for the society or persons hurt by the crime. Its punitive tool for achieving deterrence is not as strong as the others, so restitutive systems are not big on that.
Criminal justice debates are not ‘law students’ debates’. Although a lot of legal terminologies might be thrown around in debate rooms which might confuse some debaters, it is really just about simple sociological and philosophical principles that guide whether we should perceive a thing as a crime in the first place, and when we do, how best we protect the society and make people safe, or at least, feel safe.