Tuesday, 22 January 2008

Utopia or Reality? Can we create the Perfect Criminal Justice System?

This was an essay I had to submit for my course on the criminal justice system, I post it here because it raises several things I discussed in my post Draft Prinicples of a Marxist Criminology and should be of interest to all readers ps. there's more after the references

Is there such a thing as a perfect criminal justice system and, moreover, what would such a criminal justice system look like? In this essay we will examine these questions. We shall first discuss what a criminal justice system is, before contemplating what the aim and purpose of a criminal justice system is. We will then discuss if and how these systems may be perfected, before discussing the implications of this on individual branches of the criminal justice system and concluding the essay.
The first question that we are presented with is that of definition, what is a criminal justice system? The Sage Dictionary of Criminology (2001:66) defines Criminal Justice as “The process through which the state responds to behaviour that it deems unacceptable. Criminal justice is delivered through a series of stages: charge, prosecution, trial; sentence; appeal; punishment. These processes and the agencies which carry them out are referred to collectively as the criminal justice system”. Cavadino & Dignan (2002:1) note that the criminal justice system consist of the “police, prosecution authorities and courts” in addition to the penal system “the system that exists to punish and otherwise deal with people that have (usually) been convicted of a criminal offence” (most importantly the prison and probation services).
The entry in the Sage Dictionary of Criminology later states “… crime control, or crime reduction, is obviously the overall aim of criminal justice…” (2001:67). But this answer does not yet solve our question; instead we must ask what would the aim and purpose be of a perfect criminal justice system? Given as we have seen crime control and crime reduction are the aims of a criminal justice system, then a perfect criminal justice system would reduce crime to non-existence. However, such an aim is quite contradictory; if such an aim was achieved there would be no need for a criminal justice system to exist any more as there would be no further criminal offending. Here we have our answer, the perfect criminal justice exists when it has served its purpose, when it is no longer necessary and thus no longer exists.
If we consider Lenin’s (1987) notion with regards to the state as a whole withering away when it is of no further use, then the idea of a criminal justice system ceasing to exist when crime is no longer occurring is very similar. In discussing democracy in the state Lenin (1987:339) says “… the more complete it is the more quickly it will become unnecessary…”, we could similarly say the more complete and effective a criminal justice system is in reducing crime (by lowering recidivism for example), the less need there is for it.
One may ask how relevant it is to be talking about the state in relation to the criminal justice system. As Taaffe et al. (1983:25-6) point out that “In the last analysis – as Marx, Engels and Lenin pointed out - the state consists of armed bodies of men and their material appendages ie. prisons etc.” Are not these the main constituents of the criminal justice system – the police and prisons – alongside the judiciary?
It would also be wrong to consider Lenin’s argument on the withering away of the state without noting that there is another criminological tendency which posits the lack of or severe reduction of a criminal justice system. Abolitionism to some would seem a not too dissimilar approach to the one just outlined above. Indeed, in an article outlining the relationship of abolitionism to crime control, Willem de Haan talks of “popular or socialist forms of penality” (de Haan, 1991:214), and the abolition “of the repressive capitalist system part by part or step by step” (de Haan, 1991:213).
However, abolitionism, according to de Haan, (1991:203) “is based on the moral conviction that social life should not and, in fact, cannot be regulated effectively by criminal law and that, therefore, the role of the criminal justice system should be drastically reduced while other ways of dealing with problematic situations, behaviours and events are being developed and put into practice.” Unlike the Marxism of Lenin, its starting point is not class struggle that necessitates the abolition of capitalist relations of production, but moral conviction instead. Whereas the eventual ‘withering away’ of the state and criminal justice system is only possible in a post-capitalist situation for Lenin, Abolitionists want the criminal justice system gone without any pre-conditions.
This difference then leads on to differences of a more practical nature. As de Haan (1991:207) goes on to state “…the criminal justice system is part of the crime problem rather than its solution… Therefore there is no point in trying to make the criminal justice system more effective or more just.” And later “Instead of the panacea which the criminal justice system pretends to provide for problems of crime control, abolitionism seeks to remedy social problems… Abolitionism assumes that social problems or conflicts are unavoidable as they are inherent to social life…” (de Haan, 1991:211) In contrast, as Taaffe et al. (1983:14) point out “It would be absurd for socialists in present day society to stand aside and declare that we cannot support the police in taking action to prevent crime and arrest criminals.” However, Marxists would agree that social problems need remedying too, and it is to this that we now turn.
As Jock Young (1981) discusses, aetiology, or the causes of crime is a pivotal issue in criminology and in how one deals with crime. This is influential, because as he exposes “If, for instance, we view crime as a voluntary act of the individual, we would tend towards a policy of punishing him or her, whereas, if she/he is seen as acting under the compulsion of individual or social forces, the treatment of the criminal might seem to be inappropriate.” (Young, 1981:252)
Indeed, Lenin (1987:340) suggests that with the removal of “the fundamental social cause of excesses”, which he holds to be “the exploitation of the masses, their want and their poverty”, “excesses will inevitably begin to “wither away”… with their withering away, the state (or in our case the criminal justice system) will also wither away”.
From this passage we can see that Lenin suggests two main causes of crime (or excesses); ‘want and poverty’ (deprivation/relative deprivation) as well as ‘exploitation of the masses’ (alienation). These factors are not new, indeed, Lenin being a Marxist drew these concepts from Marx, who exposed them several times in his works, most accessibly in Wage, Labour and Capital (Marx, 1996).
Marx’s theory of alienation can be summed up nicely in the sentences “… the exercise of labour power, labour is the worker’s own life activity, the manifestation of his own life. And this life activity he sells to another person in order to secure the necessary means of subsistence. Thus his life activity is for him only a means to enable him to exist. He works in order to live. He does not even reckon labour as a part of his life, it is rather a sacrifice of his life.” (Marx, 1996:25) Sell (2006:28) adds to this by commenting “Instead of making life easier, the increase in automation has reduced ever more jobs to mind-numbing repetition and boredom”.
Marx’s explanation of relative deprivation is similarly summed up well by his words “A house may be large or small; as long as the surrounding houses are equally small it satisfies all social demands for a dwelling. But let a palace arise beside the little house, and it shrinks from a house to a hut. The little house shows now that its owner has only very slight or no demands to make; and however high it may shoot up in the course of civilisation, if the neighbouring palace grows to an equal or even greater extent, the occupant of the relatively small house will feel more and more uncomfortable, dissatisfied and cramped within its four walls.” (Marx, 1996:39) He concludes, “Our desires and pleasures spring from society; we measure them, therefore, by society and not by the objects which serve for their satisfaction. Because they are of a social nature, they are of a relative nature.” (Marx, 1996:39)
But how does this relate to crime? Sell (2006:30) argues that “The result [of increases in alienation and relative deprivation] has been an increase in street crime and robbery, almost all of it carried out against people who are also living in poverty. There is an increase in drug addiction… The reasons for drug use are wide and varied. Nonetheless, the increase in drug addiction and dependency, both legal and illegal, is primarily the result of a more alienated society.”
She goes on to illustrate this, pointing out “…the experience of the ex-mining villages around the country… the closure of the pits have left previously strong communities suffering the ravages of unemployment, poverty and drug addiction.” (Sell, 2006:30)
Young (1991:154) correctly states that based on this “To reduce crime we must reduce relative deprivation by ensuring meaningful work is provided at fair wages, by providing decent housing in which people are proud to live in, by ensuring that leisure facilities are available on a universal basis…”
However, as Taylor (1981:79) recognises “A welfare state which works on the principle that woman is naturally dependent on man and also currently depends on the expulsion of large numbers of youths into worklessness is not meeting the real needs of women and young people to be self-generating members of the human species.” The problem being that attempting to solve the problem of relative deprivation via a redistributive welfare state doesn’t solve the problem of alienation. It, as Taylor (1981) later notes adds because this is carried out by a layer of professionals which he argues act in lieu of people, rather than under their control.
Engels (1971:32) similarly discusses how “Society had created its own organs to look after its common interests, originally through simple division of labour. But these organs, at whose head is the state power, had in the course of time, in pursuance of their own special interests, transformed themselves from the servants of society into the masters of society.”
To overcome alienation, it is necessary to overcome the fact that most people have no control over a large portion of their life, whether in the workplace, or outside it. Taylor (1981:101) argues that a “thoroughgoing democratisation” is necessary for these interests to be met. What would this look like you may ask?
Engels (1971:33) commenting on the Paris Commune suggests that “In the first place it filled all posts – administrative, judicial and educational – by election on the basis of universal suffrage of all concerned, subject to the right of recall at any time by the same electors. And in the second place, all officials, high or low, were paid only the wages received by other workers… In this way an effective barrier to place-hunting and careerism was set up…”
As Johnstone (2000) points out there are critics who would suggest that such a manner of operation of society as a whole, and the criminal justice system in particular, could not operate. Johnstone (2000:165) goes on to explain “even if it were concluded that today there is widespread and increasing support for a less tolerant and more punitive penal policy, it would not follow that increased public participation in the making of penal policy would automatically result in a harsher penal system.”
He continues “With regard to penal policy, the suggestion that people should be excluded from its making because they do not have the necessary qualities – such as knowledge, active interest and restraint – is easily countered. Through participation in making penal policy, people will develop these qualities. To the extent that they lack such qualities, this is due precisely to the over-centralization and over-professionalization of governance in general and penal policy making in particular. As decisions about the use of the social power to punish are historically removed from ordinary people and placed in the hands of a small elite, people lose the attributes required to make those decisions well. The only way they can recover these qualities is by having these decisions returned to them.” (Johnstone, 2000:158)
And tying this back in with the ideas developed so far, Lenin (1987:339) comments “…the diffusion of democracy among such an overwhelming majority of the population [means] that the need for a special machine of suppression will begin to disappear”, by special machine Lenin means the state (or for our purposes the criminal justice system). Of course such a thing will not happen overnight, as Lenin (1987:334) notes “there can be no question of defining the exact moment of the future withering away – the more so since it must obviously be a rather lengthy process”. Greater and greater participation can only come with time being freed from other areas; in particular the working day must be gradually shortened to allow for “removing the antithesis between mental and physical labor” (Lenin, 1987:344). Additionally, other institutions outside the criminal justice system would also be used to help in this process, most notably the media and the education system would be inherently useful to help people become more informed about crime and the criminal justice system.
As mentioned above, informed journalism could play a role in this. Wacquant (2007:39) gives us an example of how this may look “A rational public debate on crime would differentiate between offences and rigorously measure their incidence and effects. It would eschew the short-term perspective and emotional cast of daily journalism to make a clear cut differentiation between blips and groundswells, incidental variations from year-to-year and long-term trends. It would not confuse the rising fear of crime, intolerance of crime, or concern over crime with an increase in law-breaking itself.”
However, as Feilzer & Young (2006) demonstrate, such journalism cannot be limited to just one columnist in one newspaper. It must become a standard for newspapers and other media to place crimes in their social context, and to be written in a manner that explains the processes behind the topic being reported on. A basic grasp of the workings of the criminal justice system taught to all school pupils would also assist in this manner.
Now that we have a brief outline of what is necessary to achieve such a state of the criminal justice system, it is perhaps worth looking at what the first steps towards this may be in each of it’s branches. Although the comments here are focussed on the Criminal Justice System in England and Wales, the general thrust should be applicable to a greater or lesser extent in other countries too.
Policing is perhaps the most visible part of the criminal justice system. For our purposes it is perhaps useful to look in particular at the disputes in the early 1980’s to do with the accountability of the police. This centred around several issues, from the 1980 Police Authorities (Powers) Bill proposed by Jack Straw MP, the inner city riots of 1980 and 1981 (particularly in Toxteth and Brixton) and conflicts over the role of police authorities, and later the deployment of the police during the 1984-5 miner’s strike (Scraton, 1985).
The link between all these issues was the attempt to subordinate the priorities of local policing to the wishes of the local populace. Kinsey et al. (1986) argue that police are dependent upon the local community for information to help them apprehend offenders and that the pursuance of policy contrary to the wishes of the community (such as operations like Swamp 81 which provoked the 1981 Brixton riots) merely serve to alienate the community further from the police, and thus reducing this flow of information. As they note “People have little incentive to participate in a process over which they have little control” (Kinsey et al., 1986:133) Instead they advocate increasing the powers of police authorities and giving them the responsibility to encourage debate over crime and conducting local crime surveys. This could however be extend to even more local democratic bodies for certain areas or long lasting cases or series of crimes.
Prisons have been said to have been in an almost perpetual state of crisis recently (Cavadino & Dignan, 2003), the most important of which is crisis of resources. This has manifested itself recently with a record prison populations leading to massive overcrowding across the 139 prisons in England and Wales (Dalton, 2007a).
Overcrowding has led to a poor standard of accommodation, which Cavadino and Dignan (2002:189) suggest is ‘a byword for squalor’ with lack of access to adequate toilet facilities, lack of time outside cells and cell sharing. Similary a record 91 self-inflicted deaths in prison was recorded in 1999 (Cullen and Minchin, 2000) and Morgan (2002) notes that about a quarter of all prisons are Victorian buildings, most of these older prisons are local prisons which suffer the most overcrowding. As Dalton (2007b) notes at present the strategy is to release some prisoners early and attempt to build the way out of the problem, creating 9,500 extra places by 2014, but estimates suggest that cells will run out then too.
Fundamentally, a change in policy is necessary here. Cavadino & Dignan (2002) suggest that the judiciary is the ‘crux of the [penal] crisis’ and suggest a list of reforms including empowering bodies to create enforceable guidelines for sentencing to make it more consistent, in addition to other measures to encourage the judiciary to be more lenient. However, why leave the same people running the system if they have been too punitive, and why stick to sentences given out by them if they too are too punitive. As Dalton (2007b) argues, the judiciary should be elected and democratically elected tribunals should review existing sentences.
Overcrowded prisons also don’t help reduce crime either. As government figures show six out of every ten released from prison end up back inside within two years, this cannot be improved by a situation which has seen prisoners being locked up for longer in their cells, rather than tackling some prisoner’s underlying problems such as illiteracy or innumeracy. As Dalton (2007b) points out, a reduction in the prison population would free up resources which could be used towards the rehabilitation of those it is still deemed necessary to detain.
In conclusion, the perfect criminal justice system is both possible and impossible in that on reaching its stated aim it will have fulfilled its purpose and fall into disuse. In the opinion of the author of these words most other approaches tend to keep crime down to manageable levels rather than rid us of it. This solves no-ones problems; people still get victimised, offenders get stigmatised for life and the public foots the millions and billions necessary to make the system work.
This essay has thus taken a distinctly Marxist position, drawing in particular on Lenin’s notion of the withering away of the state. We have discussed what this position would put forward as the reasons for crime and how this influences how the criminal justice system should operate to help alleviate these problems. We have then discussed how to implement these ideas within several branches of the criminal justice system. From this we have shown that perfecting the criminal justice system to the point where it is no longer needed, will take a long time and will generally consist of increasing democratisation. Wider changes in society will also be needed to supplement these processes. Crime breeds inequality, so it seems only apt that achieving real equality is the solution to this problem.


Cavadino, M. & Dignan, J. (2002) The Penal System, 3rd ed. London: SAGE
Cullen, C. & Minchin, M. (2000) The Prison Population in 1999, Home Office Research Findings No. 118, London: Home Office
de Haan, W. (1991) ‘Abolitionism and Crime Control: A Contradiction in Terms’ In: Stenson, K. & Cowell, D. eds. (1991) The Politics of Crime Control, London: SAGE
Dalton, I. (2007a) ‘Reid’s prison disaster’, The Socialist, 1st-7th February pg.5
Dalton, I. (2007b) ‘Overcrowded prisons, overworked staff’, The Socialist, 13th-19th September pg.4
Engels, F. (1971) ‘Introduction to the Civil War in France’ In: Marx, K. & Engels, F. On the Paris Commune, Moscow: Progress Publishers
Feilzer, M. & Young, R. (2006) ‘Crime Scene Oxford’: The impact of a factual newspaper column on readers of a local newspaper – Final Report to the Nuffield Foundation, Oxford: Centre for Criminology
Johnstone, G. (2000) ‘Penal Policy Making: Elitist, Populist or Participatory?’, Punishment & Society, 2(2): pp.161-180
Kinsey, R., Lea, J. & Young, J. (1986) Losing the Fight Against Crime, Oxford: Basil Blackwell
Lea, J. & Young, J. (1996) ‘Relative Deprivation’ In: Muncie, J., McLaughlin, E. & Langan, M. eds. Criminological Perspectives: A Readers, London: SAGE
Lenin, V. I. (1987) ‘The State and Revolution’, In: Christman, H. M. eds. Essential Works of Lenin: “What is to be done?” and Other Writings, Mineola: Dover
Marx, K. (1996) ‘Wage Labour and Capital’ In: Marx, K. Wage Labour and Capital & Wages, Price and Profit, London: Bookmarks
McLaughlin, E. & Muncie, J. eds. (2001) The Sage Dictionary of Criminology, London: SAGE
Morgan, R. (2002) ‘Imprisonment’ In: Maguire, M., Morgan, R. & Reiner, R.. Eds. The Oxford Handbook of Criminology, 3rd ed. Oxford: OUP
Scraton, P. (1985) The State of the Police, London: Pluto Press
Sell, H. (2006) Socialism in the 21st Century, 2nd ed. London: Socialist Publications
Taaffe, P., Grant, E. & Walsh, L. (1983) The State… A Warning to the Labour Movement, London: Militant
Taylor, I. (1981) Law and Order: Arguments for Socialism, London: Macmillan
Wacquant, L. (2007) ‘How to Escape the Law and Order Trap’, Criminal Justice Matters, 70 pp.39-40
Young, J. (1981) ‘Thinking seriously about crime: some models of criminology’ In: Fitzgerald, M., McLennan, G. & Pawson, J. eds. Crime & Society: Readings in History and Theory, London: Routledge
Young, J. (1991) ‘Left Realism and the Priorities of Crime Control’ In: Stenson, K. & Cowell, D. eds. (1991) The Politics of Crime Control, London: SAGE

Upcoming Posts

As you have seen i've posted on some of the things touched on in this post before (ie left realist criminology, media and crime, and crime and alienation) expect over the next few weeks/months/whenever i get around to it:-

A review of the State of the Police with some commentary on the 'left idealist' branch of critical criminology
A post on relative deprivation as a 'cause' of crime
A post on the criminal justice system and the paris commune
A post on The State and Revolution and the criminal justice system
A review of The State: A warning to the Labour Movement
A post on political economy and crime
A review(s) of Cavadino & Dignan's arguements about the penal system

No comments: