The criminal justice system is a network of agencies that responds to crime, including police, courts and prisons. It has come a long way since the medieval period where torture was commonplace in the pursuit of justice. It is a well thought out system, but like other organizations, it has flaws. One of its major flaws is discrimination, on the basis of ethnicity, gender and class.
In determining the fairness and effectiveness of the criminal justice system, the discretionary powers of the various agencies need to be evaluated. Is this power being abused in a discriminatory manner?
With 5.5 billion dollars being spent on the criminal justice system every year, it can be considered “as enormously expensive, overly adversial in nature, disempowering, and customarily ignoring the rights of victims.” Is this because they may conflict with the rights of the defendant?
In determining how fair and effective the criminal justice system is, all aspects in relation to discretionary powers, discriminatory behaviour and procedures, police, the judiciary, corrections, Juvenile Justice, Indigenous issues, victims rights and offender rights need to be scrutinized and evaluated.
Indigenous people, the unemployed, low-income, and the poorly educated, appear to be the main targets in law enforcement, they also constitute the main proportion of our prison population. When comparing the legal treatment of conventional and corporate offenders, it would seem that they are also treated harsher than middle class offenders. White-collar crime may be “non-violent and sophisticated,” but it can have a life long impact, yet the ‘get tough’ policies are rarely used for this type of crime. Moreover, the wealthy have greater access to legal advice. The social standing of the judiciary may also be a relevant factor here; after all, how many judges are “women, Aboriginal, working class people?” Do they reflect their values and attitudes of their age, class, race and gender in their “legal decision making,” Moreover, “a communities sense of justice can be violated ” if everyone is not treated equally. Considering the criminal justice system is supposed to “look after everyone’s interests without fear or favour,” this could compromise the effectiveness of the criminal justice system.
Irrespective of being the victim or offender, women appear to be treated unfairly and inequitably. This is not surprising, considering our laws and institutions are dominated by males. Moreover, facilities available for women are inappropriate, lacking programs and services. However, Queensland had taken measures to address this problem, by establishing a women’s unit to “explore problems” relating to female prisoners. If incarcerated, they also spend most of their sentence in maximum security despite being imprisoned for less serious or violent offences than men.
Discrimination against Aboriginal people is evident, resulting in them being disproportionately represented in the criminal justice system. However, this is discussed in more detail later in the paper.
Discretionary justice allows officials of the criminal justice system to incorporate extenuating circumstance “to make a choice on possible action or inaction.” This can result in inconsistencies, and is open to being compromised by emotions, bribery, political favroutism, racism and other forms of prejudices.
Police have enormous discretionary powers. Having the power to either charge or divert them from the criminal justice system. Similarly, the Department of Public Prosecutions exercise considerable discretion in interpreting Prosecutional Guidelines and making final decisions.
Inconsistencies may appear to occur in the sentencing process, as discretion is needed when interpreting the facts of a case. However, “the doctrine of precedent has evolved,” bounding judges to earlier decisions made by the “court at a higher level.” Moreover, “A Uniform Criminal Code” was passed in 1995, to be applied to all Australian jurisdictions from 2001, which will enhance a “unified approach in the administration of the criminal justice system.
The use of discretion is justified because of the ambiguity of the law, being a consequence of limited resources, and for equity and justice, to avoid unnecessary and counter-productive intervention. However, it can also cause infringements on the ‘rule of law’, by violating civil rights, due process and natural justice.
The discretionary power of police has the potential for abuse; with corruption being an entrenched part of the police culture. However, accountability is maintained through agencies such as the Ombudsman or Police Internal Affairs. Some complaints about police have included inappropriate responses to hate crimes against homosexuals, and not taking complaints of racial abuse, seriously by non-English speaking persons.
Traditional policing methods are reactive, focusing on street crime and the protection of private property, which could be seen to reflect the interests of the dominant group. On the other hand, community policing acknowledges that the community have an “active role to play in the policing process,” with programs such as Neighborhood Watch being established.
It is difficult to measure the effectiveness of the police, as “responses to crime are generally reactionary in nature.” However, it could be questioned amongst claims of corruption and inappropriate responses.
Our criminal justice system has the ‘rule of law’, which means “that the law is to apply universally to all classes of people.” But then again, the wealthy have greater access to legal representation, and the cost of legal representation could act “as a significant deterrent against the pursuit of ones rights,” resulting “in an injustice for people unable to afford appropriate legal services.”
In the pursuit of efficiency, effectiveness may have been compromised. Court processes have been streamlined, for example, the practice of conducting committals via hand up briefs, which means that key prosecution decisions are being made without testing the strength of the witnesses. Another example is the change in legislation, which now allows more matters to be heard summarily.
Mandatory sentencing specifies penalties for different offences, eliminating “judicial discretion,” It also disregards extenuating circumstances, and relates to mostly impulsive crimes, resulting in it being an inefficient deterrent. This could further disadvantage groups which are already over represented in the system, especially indigenous people. Moreover, it neglects the individual needs of the offender.
The issue of obtaining confessions has been controversial, and the admissibility of such evidence contradictory. The prosecutor has to prove that the confession was not obtained by “oppression or inducement.” However, uncooberated police evidence is usually accepted, leaving the system open to abuse. Roger Rogerson , admitted, “Verbals are a part of police culture.” This has diminished with the introduction of using video to record interviews. But then again, ‘hearsay evidence given by prison informers has been used, despite being obtained by promising a reward to the informer.
The aims of prisons, is to “equalise the wrong done and harm suffered,” to remove offenders from society, and to set an example to deter others. They are also meant to reform offenders by changing their values, and to rehabilitate them, by offering programs to equip offenders with skills to avoid reofffending.” However, with a recidivism rate of 60 – 70% it could be argued that they do not achieve aims beyond that of incapacitation, and that existing correctional strategies are not working.
“Prisons create and foster violence, with a lack of post-release programs meaning that angry people will remain that way,” which prevents them from “returning to a useful role in society.” There are also indications of abuse of power by prison officers, and harassment of prisoners.
The focus of management practices in corrections can be seen to focus on control, rather than rehabilitation, making it difficult for prisoners to gain new skills; for example; prison rules that limit prisoners to two books in their cell.
Despite moves to improve conditions within our prisons, events such as escapes and suicides indicate they may not be as effective as hoped.
“Because of their immaturity, vulnerability and impressionability, child offenders are dealt with separately in specially designated children’s courts.”
Juvenile Justice legislation has changed, providing harsher sentences and the simplification of mechanisms to transfer proceeding to higher court. It includes mandatory sentencing, which is based on prior conviction, rather seriousness of current conviction, limiting the discretion of the judiciary. It also has the potential for less serious offenders to be imprisoned, impacting disproportionately on Aboriginals. This allow for a more “retributive approach,” with a more punitive regimes such as mandatory sentencing.
At the same time, there is a tendency towards diversionary schemes that focus on youth offending, for example conferencing. The disadvantage to these schemes though, is that they don’t tend to address the economic and social problems facing young people.
Tougher Juvenile Laws also include recent legislation such as the Children (Protection and Parental Responsibility Act 1997, which gives police power to remove juveniles from any public place and transfer them to the care of an approved person for 24 hours. This gives concerns over the rights of young people. Although conferencing has benefits, it can also be seen as a denial of due process for the accused, this is because guilt has not been proved prior to participating.
If Australia has a fair and effective criminal justice system, then why is our Aboriginal population so over-represented at every stage of the system? They are arrested “29 times the rate of others in the Australian population,” and while “making up only 2 percent of the total population make up 18% of the prison population.” Moreover, indigenous people are more likely to be removed from their communities for the period of incarceration, due to the lack of facilities in rural areas.
“Aborigines have been routinely targeted under strategies to maintain social order.” Various types of legislation that ultimately regulate the behaviour of indigenous people can be seen as indirect discrimination, contributing to over policing in aboriginal communities. This eventuates in them having a more extensive criminal record, as they are less likely to be diverted from the system, enhancing the chances of them being criminalized. They “are disproportionately arrested and incarcerated for minor offences relating to public disorder, demonstrating the disadvantageous manner in which the discretion is applied to indigenous people.” Police exercise their discretion at point of apprehension in a discriminatory nature, with the use of physical violence being widespread by the police.
The criminal justice system does not take into account aboriginal values, or treat cultural differences sensitively, for example, swearing and fighting may be legitimate forms of dispute processing and social control in Aboriginal society, yet the legal system deems such behaviour as disorderly and deserving of intervention. Moreover, in these instances indigenous young people are unlikely to receive the benefits of police cautioning.
The Royal Commission into Aboriginal Deaths in Custody (Muirhead 1988) have suggested that “Aboriginal human rights are violated with them being subjected to discrimination at every stage of the criminal justice system,” which “pose as significant problems in our criminal justice system.”
VICTIMS OF CRIME
“Emotional effects of crime can be quite devastating,” yet police have no clear rules as to how to address the rights of victims. The criminal justice system is supposed to protect potential victims, yet victims do not report crimes because of perceived inaction of the police. Often, charges are not laid in domestic violence issues, which “undermines the goals of empowering battered women.” It also reinforces cynicism of the police, resulting in many incidences remaining unreported.
“Victims exclusion from court before and after they have testified,” emphasizes their lack of control. However, there have been initiatives to improve the treatment and participation of victims, which have improved cooperation with the criminal justice system and have shown to aid in the victim’s recovery, for example; conferencing. By allowing participation, victims feel as if they are able to express their view, and feel that they are treated with more respect.
Multidisciplinary team approaches have been developed to improve the response of the criminal justice and social service systems, “when responding to special problems posed by child abuse cases.” However, due process rights of the accused limit these practices, because of concerns about their rights.
Significant legislative reforms have occurred in all jurisdictions in Australia introducing new statutory rights for victims, including changes to the rules of evidence in sexual offence cases, expanded access to compensation, increased support services, and changes to police and court procedures.” Another measure introduced, is the victim impact statement, which is designed to enhance the courts understanding of the seriousness of the offence.
A defendant can trade a guilty plea for a reduced charge. Although plea-bargaining expediatently disposes of cases, it also excludes victims from the process. This prompted new reforms, and expanded the use of victim impact statements, increasing cooperation from the victim. However, this can affect offender rights indirectly, because the proceedings may focus on the victim, rather than the offender. Plea-bargaining can also be deemed to be unfair, since undue pressure is being placed on the accused to plead guilty. However, the prosecution does not initiate this process.
An accused person has the right to silence, sufficient notice to prepare a defense, a trial by jury, a right to appeal, and a right to legal representation. In other words, they have a right to ‘due process,” guaranteeing impartiality and neutrality. They are also innocent until proven guilty.
Juries are important to ensure an “open, just and accountable criminal justice system,” exposing the trial system to “community scrutiny and assessment.” However, they are also “unaccountable, giving no reasons for their decisions, nor do they even have to accept the directions in law that the trial judge gives them.” They can be easily swayed by their emotions, corrupted or influenced by the media, compromising the “accused right to a fair trial.” Similarly, they may also be biased by stereotypes promoted in the media, which can result in a miscarriage of justice, for example; Lindy Chamberlain, who spent nearly three years in prison, and Tim Anderson who spent seven and a half years incarcerated, both eventually being acquitted of all charges. A juror in Anderson’s trial stated; ” the papers also painted a picture of Ananda Marga as a dangerous terrorist group. Whether or not this is true, I can’t say, but I certainly feel that this image affected us in making a decision.” However, in protecting a defendants right to a fair trial, journalists can be held in contempt of court if their reporting is considered prejudicial, for example Derrin Hinch was imprisoned for his reports on the Glennon case.
An accused person has the right to legal representation, that is, if they can afford it. Although Legal Aid is available, the wealthy have greater access to more experienced legal advice. This once again disproportionately disadvantages “underprivileged groups in society.”
The criminal justice system is fair and effective, that is if you are a white, middle to upper class male. Social standing seems to be important on how a person is treated by the criminal justice system. But then again, it “would merely be a reflection of the wider discrimination which exists in society.”
It is evident that the discretionary powers afforded to criminal justice officials can be biased or abused, and combined with media reporting, can cause a miscarriage of justice to occur. On the other hand, the use of discretion ensures a more effective criminal justice system, since the law can be ambiguous and there are limited resources to address all instances of criminal activities. Moreover, there are guidelines limiting the use of discretion. But then again, discretion can easily become disparity.