Main Public Policy principles related to crime

PUBLIC POLICY

Public policy is a course of action or inaction chosen by public authorities to address a (common-social) problem. Public policy is expressed in the body of laws, regulations, decisions and actions of government. Policy analysis may be used to formulate public policy and to evaluate its effectiveness.

According to William Jenkins in Policy Analysis: A Political and Organizational Perspective 1978), a Public Policy is ‘a set of interrelated decisions taken by a political actor or group of actors concerning the selection of goals and the means of achieving them within a specified situation where those decisions should, in principle, be within the power of those actors to achieve’.

MODELS OF CRIMINAL JUSTICE

Two competing perspectives underlie our criminal justice system: (i) crime control, and (ii) due process. For almost every important issues in CJ, one can find crime control and due process ways of responding. Eg., police powers: crime control advocates argue that police should have wide powers to gather evidence and to question suspects. DP advocated prefer to limit the powers of the police to ensure that individuals’ rights are not compromised.

· Crime control: it stresses the importance of controlling crime and favors providing criminal justice professionals with considerable powers with wich to respond to crime.

o Law and order agenda

o Increase police powers

o Retribution

· Due process: it prefers to place limits on the powers of the criminal justice system.

o Examples:

§ Right not to be deprived except in accordance with the principles of fundamental justice

§ Search or seizure: Right to be secure against unreasonable search or seizure

§ Detention or imprisonment: Right not to be arbitrarily detained or imprisoned

§ Arrest or detention: To be informed promptly of the reasons

· To retain and instruct counsel without delay and to be informed of that right

§ To have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful

§ Proceedings in criminal and penal matters:

· To be informed of the specific offence

· To be tried within a reasonable time.

· Not to be compelled to be a witness in proceedings against that person in respect of the offence

· To be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

· Not to be denied reasonable bail without just cause.

· Trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

· Not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

· No double jeopardy.

· If the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

· Treatment or punishment

· No cruel and unusual punishment.

· Self-crimination

· Interpreter

	CRIME CONTROL	DUE PROCESS
Function of the CJ process	Repression of criminal conduct	To protect rights.
Notion of efficiency:	The system’s capacity to apprehend, try, convict, and dispose of a high proportion of criminal offenders	Primacy of the individual and limitation of official power.
Success	When the CJ system produces a high rate of apprehension and conviction.	When all the CJ safeguards and protections were respected.
Presumption of guilt vs. presumption of innocence (not a rule of law)	Presumption of guilt: The screening processes operated by the police and prosecutors are reliable indicators of probable guilt. Once a determination has been made that a person is guilty, all subsequent activity is based on the view that this person is probably guilty.	Presumption of innocence: A person is not to be held guilty of a crime merely on a showing that he did factually commit the crime. Instead, he must be held guilty if and only if these factual determinations are made in a procedurally regular fashion and by the authorities acting within competences duly allocated to them. Furthermore, he is not to be held guilty if various rules designed to protect him and to safeguard the integrity of the process (jurisdiction, venue, statute of limitations, double jeopardy, criminal responsibility, etc.) are not given effect.
Nature of the presumption	Presumption of guilt: descriptive and factual	Presumption of innocence: normative and legal
Center of gravity of the process	Early administrative fact-finding, i.e., police and prosecutors, where investigative and prosecutorial officers act in an informal setting with ample faculties to elicit and reconstruct an alleged criminal event.	Formal, adjudicated, adversary fact finding processes.
Central actors	Police and prosecutors	Counsel Adjudicative agents are relegated to a relatively passive role.
Equality	Not central at all.	The ideal of equality holds that there can be no equal justice where the kind of trial a person gets depends upon his or her financial resources.
Attitude towards Criminal sanction	Respect	Skepticism about the morality and utility of the criminal sanction.
Main authority	Legislature	Judiciary

GENERAL CRIME PUBLIC POLICY PRINCIPLES

• PUNISHING CRIMINALS

The retributive criminal justice school puts forward the idea “that punishment is justified when it is deserved.” They believe that “retribution is essentially the infliction of harm on offenders on the basis that they deserve it as a result of their crimes.” For Kant, who together with Hegel pioneered retributive thinking in the criminal justice sphere, civil society has a moral duty to restore the balance of justice when it is affected by a crime. The only way to restore justice is by punishing the criminal by giving him what he deserves. When analyzing the extreme case of this postulate, Kant himself made it very clear that: even if a Civil Society resolved to dissolve itself with the consent of all its members… [,] the last Murderer lying in the prison ought to be executed before the resolution was carried out. This ought to be done in order that everyone may realize the desert of his deeds, and that bloodguiltiness may not remain upon the people; for otherwise they might all be regarded as participators in the murder as a public violation of Justice.

· CRIME PREVENTION AS A POLICY OPTION

Is there a politically acceptable alternative to our current policy of imprisoning the nonviolent in response to the public's fear of violence? One possibility is to prevent violent crime before it occurs. Prevention has acquired a bad reputation among the public, perhaps because it is linked with strategies that favor social programs for the crime-prone in place of punishment for actual criminals. Many criminologists, however, view prevention as a supplement to punishment. The question is whether we can prevent some crimes before they occur, and at a lower cost than we currently spend on punishing their perpetrators.

• ALTERNATIVE PUNISHMENT AS A POLICY OPTION

Clearly, there is a strong public demand that criminals -- even nonviolent criminals -- be punisshed for their antisocial actions. Prison is only one way of punishing criminals. It possesses the great virtue of incapacitating the criminal from committing other offenses, and for violent criminals, the principle of harm minimization supports the use of this approach. But when there is no reason to believe that the offender is violent, other means of punishment may be more cost-effective and still sufficiently punitive to be politically acceptable.

Such alternatives can contribute to harm minimization by freeing prison beds and budgets for violent offenders. In addition, it may offer more effective strategies for deterring criminals who, even if imprisoned, will be back on the streets within a relatively short period of time. Such deterrence is important, because the decision of these people to obey the law or turn toward more serious violations will also affect how many citizens are victimized by crime.

SOME CHARACTERISTICS OF THE MAINSTREAM CANADIAN CRIMINAL JUSTICE SYSTEM

1) Professionalism.

The main social actors are professionals who are detached from the community of the offender and victim, such as the judge, the defense lawyer, the prosecutor.

Offender does not generally speak in the trial. The lawyer does it for him.

The victim has no role whatsoever other than as a witness.

The community has no participation.

The judges who are generally white, citizens, native speakers of English (or French in Quebec) and from middle or upper classes have ample leeway to decide a case as they see fit. Usually they do it by reflecting their ideology.

The way professionals interact in the courtroom, known in Sociology of Law as the courtroom workgroup, is an example of the professionalization of the criminal justice system.

The courtroom workgroup represents the shared understanding between lawyers and judges regarding the proper disposition of a case.  The norms of the courtroom workgroup frequently encourage plea bargaining or other quick resolutions to a case.  Defense attorneys often suffer an inordinate amount of pressure to maintain their dual role, serving both the client and the court.

The prosecutor holds significant power and discretion over the decision to charge a suspect and is often cited as being the most powerful member of the courtroom workgroup.  

Just as the police are seen as the gatekeepers of the criminal justice system, prosecutors are viewed as the gatekeepers of the courts. 

Once charged with a crime, a defendant may be in need of a defense attorney.  

The duties of a defense attorney are vital in protecting the rights of the accused. 

• Although they are often criticized on a number of ethical issues, indigent defense systems in every state serve the majority of defendants in the criminal justice system. 
• Finally, the roles and responsibilities of judges are examined. 
• Judges are the “referees” of the courts and perform an important administrative function in its management.  
• All three main players in the court have roles, duties, and levels of discretion, yet all work together in the same forum to produce justice. 

  The process by which judges and prosecutors are appointed plays a large role in their subsequent decision-making.

•  There are pressures and influences surrounding every selection method used in the judiciary.
•  Presidential nomination of judges entails the approval of politically motivated persons and groups.
•  Public election of judges entails a dependency on public satisfaction with job performance for re-election.
•  Even merit selection, which combines these methods of nomination and election to overcome their limitations, still retains a measure of political affiliation.

Similarly the nomination of district attorneys and the appointment of prosecutors to specific cases is a political process.  Overall, the method used in the selection of prosecutors or judges will play a large part in the discretion used by each official of the court.

There is a distinction between the normative and actual role played by defense attorneys in North American courts.

•  Defense attorneys represent “double agents.”  On the one hand, they have a service to provide for their clients regardless of the fact that they may believe the accused to be guilty of the crime charged.
•  On the other hand, defense attorneys have an important role to perform as a member of the “courtroom workgroup” and the ultimate dispensation of justice.

2) Discrimination against laypersons

Juries: distrust. Their decision power is very limited. Only questions of fact, not law. But even so, judges decide many questions of facts. There are lots of objective tests. Jurors are not allowed to read. Everything has to be read to them. Whatever document they should analyze is mediated by the lawyers, as if they were still illiterate. The whole evidence rules also reflect a profound mistrust of jurors. There are these sets of rules that have the objective of hiding things from jurors.

For example, whenever a lawyer objects, and if the judge sustains that objection, then the jurors are deprived from knowing about that question. The criminal justice system considers them incapable of understanding, of giving the right value to the question or piece of evidence objected to.

(Non expert) witnesses: they can only testify about what they actually saw or heard. They may not express any opinion.

3) Very limited role for victims

Traditionally in Canada, victims have had a very limited role in the criminal justice system. They are considered witnesses to the crime. In the last few years, there have been some changes but their role remains quite limited.

The government’s response

CDN Statement of Basic Principles of Justice for Victims of Crime (88)

· Victims should be treated with respect.

· Information about the criminal process, available remedies, health & social services.

· Ensure the safety of the victim

· Training to sensitize criminal justice personnel about victims’ needs.

Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (85)

State restitution when perpetrators are police officers or other state officials.

State compensation when restitution is not available.

Victims of abuse of power that is not a crime.

· Victim impact statement

o In 1988 changed to Criminal Code

o Given after conviction and prior to sentencing.

o This reduces the victims’ feelings of powerlessness as participants in the criminal justice system.

o As from 1996 victim impact statements are to be considered in sentencing.

· Victim compensation

o Victims can apply for compensation from the state to pay for damages associated with the crime.

o Victim compensation programs range from $5000 to $30,0000.

o In NS very limited, mainly restricted to the payment of counseling fees.

· Victim restitution

o Sentence may oblige offender to pay restitution to the victim

· Police Based programs: referrals for crisis intervention, staffed by volunteers & civilians.

· Court services: helping victims deal with the criminal justice system: transportation, explanation of witness procedures, some limited counseling, etc. Presence of support person if witness is under 14 years of age, victim of sexual offense under 18 may make testimony behind a screen or by closed-circuit TV.

o These services are funded by a victim fine surcharge of 15% of a fine. If there is no fine the judge can set the amount up to $10,000.

· Rape shield provisions

· Public exclusion orders in the case of child witnesses.

· Publication and broadcast bans of identity of victims in sexual assault cases.

· Crisis intervention: referrals for services to help victims recover from their ordeal.

· Victim-offender reconciliation programs

· Public education

· Victims’ rights: Ontario has a Victim’s Bill of Rights

Private prosecutor system in Europe and Latin America

4) Discrimination against women and other minorities

Canadian Criminal Law reflects a male perspective of repressing conducts.

The criminal justice system is still dominated by men and by a male ideology on how to repress certain conducts.

While female voices have achieved some changes in the last few years, the essence of the system remains male oriented.

There is no room for immigrants in the system. Their voices have not been heard. For example, the objective test of the reasonable person –which has made some room for female views- has not accommodated the perspective of immigrants.

Over representation of minorities in North American prisons (aborigines in Canada and Latinos and African Americans in the US).

5) Legalistic conception of crime

Crime is conceived in legalistic terms. Crime is a voluntary act that causes social harm (actus reus) performed with a certain mental element (mens rea), provided there are no defenses or justifications.