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Published: Fri, 02 Feb 2018
Victims in Criminal Justice
The problems of society become most visible when change occurs, and recent decades have brought immense social and economic changes (Pampel, 2000: 52).
This can be revealed most clearly in the sociological aspects of youth crime. However, it has also been claimed that social policy should evaluate how policies impact on peoples’ lives (Blakemore, 1998: 5). Durkheim noted that society works best when it exercises control over individuals (Pampel, 2000: 72). Acceptable behaviour is enforced through law and morality which is maintained through rules and principles: the cement of society (Devlin cited in Elliott and Quinn, 1998: 449). This cement’ illustrates legal moralism that has been identified as socially significant’ (Cotterrell, 1989, Page 1). Accordingly, an analysis of law’s conceptual structures (Cotterrell, 1989, Page 3) could be ascertained and the importance of shared values emphasised, ultimately influencing individuals’ behaviour (Pampel, 2000, Page 57).
This has been reflected in a decline of organic solidarity,differentiating society’s collective conscience, and thereby creatingan environment for an increase in crime. This philosophy ofinter-related support has been recognised as structural functionalismwhich, taken to extremes, acknowledges that poverty and crime arenormal and natural functions within any healthy society (Pampel, 2000,Page 75). The rule of law should represent the ideal of a universalgoodness exhibiting no negative impact on any given society, and nonegative characteristics that could apply to its nature according toThompson (Thompson, 1975, Page 266). Unfortunately, it appears to bethis concept that has swung too far in the favour of society’smiscreants, to the detriment of their victims, the communities in whichthese offenders live, and the weaker members of society, prompting thecurrent debate on victims’ rights and David Blunkett’s intentions tore-address the balance to deliver real justice to victims and thewider community (Blunkett, 2002b).
This essay evaluates the wider issues surrounding the criminal justicesystem, social policy and how feminism and the study of gender impactson these sectors. Classicism and positivism are particularly relevantto any study of criminology and lead to an introduction ofcriminological theories which attempt to put feminism into the contextof social policy within the criminal justice sector. Crimes amongst theyouth might also be considered to be a reflection of the current socialtrends and this facet has briefly been evaluated in terms of socialenvironment. The conclusion summarises many details introduced in thisessay.
2.1 Definitions of crime
The Royal Commission on Criminal Justice was set up to:
Examine the effectiveness of the criminal justice system in Englandand Wales in securing the conviction of those guilty of criminaloffences and the acquittal of those who are innocent (Zander, inMartin, 1998).
The Runciman Commission made 352 recommendations in 1993, from policeinvestigations to disclosure of evidence (Field and Thomas, 1994 citedin James and Raine, 1998: 40). All aspects of the criminal justicesystem came under scrutiny, with 600 organisations contributing to itsevidence (Martin, 1998: 115). During this period, the Criminal Justiceand Public Order Act 1994, the Criminal Appeal Act 1995 and theCriminal Procedure and Investigation Act 1996 were all implemented,with varying interpretations and capricious emphases which alteredaccording to Management changes.
Pampel observes, however, that:
the problems of society become most visible when change occurs, andrecent decades have brought immense social and economic changes(Pampel, 2000: 52).
Durkheim, meanwhile, noted that society works best when it exercisescontrol over individuals (Pampel, 2000: 72) with Weber maintainingthat:
societies work more smoothly when the use of power has legitimacy inthe eyes of both the rulers and the ruled (Pampel, 2000: 113).
Deterrence, retribution, rehabilitation and incapacitation constitutethe four major theories of punishment. Deterrence aims to reduce crimethrough threat of punishment, or through its example. The concept isthat the experience of punishment would create an impact unpleasantenough to prevent any further offence. Penalties are established toprevent crime being contemplated, with the idea that the example ofunpleasant consequences would make potential criminals reconsider anyfuture offence. Retribution requires an offender to contributecommunity-based endeavours through proportionality related to thecrimes committed. The concept involves cleaning the slate throughenforced labour to account to society for any misdemeanour.
With the intention of better justice through more consistentsentencing, the White Paper preceding the Criminal Justice Act 1991suggested that convicted criminals get their just deserts (HMSO,1990a). This concept does actually limit the State’s power throughlimiting exemplary sentences, achieving parity when two offendersreceive similar punishments for similar crimes. The National VictimSupport Programme was considered a way forward with respect tosociety’s acceptance of restorative justice but both of the majorpolitical parties have pursued half formed and in many ways halfhearted policies in relation to victims of crime. There is littleindication of change in this area (Newburn and Crawford, 2002: 117).
Conformity through inner positive motivation exemplifies the theory ofrehabilitation, although it has been criticised for disparity inproportionality. The concept is not based on the degree of offencecommitted or focused on the criminal’s past, but on futurerehabilitation to preclude re-offending through changes ofcircumstances. Conversely, incapacitation recognises that someoffenders fail to respond to deterrence or rehabilitation and continueto commit crimes as and when an opportunity to do so presents itself.For criminals with this mindset the only option is protectivesentencing to prevent further crimes being committed, thereby punishingthe offender for crimes committed with a further implication ofpunishment for future crimes that could be envisaged if released.
An equally important part of restorative justice must be in measures toprevent crimes being committed. Funding of £6 million has been investedin a Government programme to reduce crime. Some of these measuresinclude restorative justice, enforcement of financial penalties, CCTVinitiatives, treatment of offenders, youth inclusion initiatives,targeting policies and intervention work in schools To be effective indeveloping suitable policies the criminal justice system need toapproach the problem from different angles simultaneously, and adopt apolicy of co-operation and co-ordination across all involved parties.Since the inception of the Regional Crime Squads (South cited inMaquire, 1994, 423), co-operation has existed across autonomous policeforces, and surveillance & intelligence squads can acquireinformation which, along with co-operation from the other agencieswhich make up the criminal justice system, can be collated and used toprevent some of the worst excesses of violence and crime erupting.
Novick argues that the basis of the State is a need for a single andefficient protective association in a territory’ (McCoubrey &White, 307) with Jacques considering that economic efficiency needs tobe assessed in respect of its impact on human feelings, on communityand on social relationships and the quality of life in society'(Jacques, 1976, 15). Adjudication provides a formal mechanism forresolving disputes, with rules of change available to deal with newproblems requiring further elucidation and rules of recognitioninvolving prerogative powers and the sovereignty of Parliament. Theserules do not account for those natural rules which acknowledge thoseinherent fundamental human rights. According to Finnis (2002), eachindividual is aware that deviation from society’s code of behaviourwould result in sanctions being applied to avoid injustice. The ethosFinnis applies to his explanation of retribution is considered torectify the distribution of advantages and disadvantages by deprivingthe convicted criminal of his freedom of choice in proportion to hisunlawful act.
Regardless of theories, an escalating scale of crimes continue to becommitted, with 5.2 million offences recorded in England and Walesduring 2000 (Recorded Crime, HMSO Press Release, 19/01/01) which, whencompared to 3.87 million in 1989 and 479,40,018 in 1950, has an effecton long term projections in the prison population to 2008 (BritishCrime Survey 2001 &ndash 2002). Evidence of this was exhibited when thedisturbances in Strangeways prison took place in 1990, prompting theWoolf Report (Custody, Care and Justice, HMSO, 1991). It was publishedas a White Paper in 1991 and highlighted the relationship betweenovercrowding in prisons and the maintenance of control, promotingongoing discussions about the aims of imprisonment.
Meanwhile, the crime response and solving rate has fallen from 45% to29% despite the number of police officers having increased from 63,100to 126,500 (British Crime Survey 2001 &ndash 2002). Maguire suggests that:
increasing numbers of police officers, an increase in telephonesmaking reporting easier, increasing use of insurance, and reducedlevels of public tolerance to violence have all contributed (Maguire,cited in Croall, 1997).
Stern recognises the system often precludes dedicated people from amore effective route of exacting retribution (Stern, 1989: 247). Thediversity of ideas and practices associated with the restorativejustice movement exemplify the difficulties associated with theconcept. Johnstone (2003) highlights the paradigm of justice associatedwith practical experimentation that underlies the values and ideaswhich involve a number of models of theoretical law covering criminaland civil law together with restorative justice. The relevance of thisearlier part of the essay reflects the ethos of restorative justice:this is not a new concept, nor can it be viewed in isolation.
2.2 Classicism, Positivism and Realism
The divergence of positivism from its precursor, classicism, wasdescribed by Austin as a rule laid down for the guidance of anintelligent being by an intelligent being having power over him’.(Austin, 1995: 9). Parallels with this concept can be illustratedwithin the feminist model whereby women were classed as irrationalbeings and of secondary importance to men. It has been acknowledgedthat criminological theories have been developed by men for men andattempts to categorise women offenders in accordance with theseprecepts fails to be applicable (Gelsthorpe and Morris, 1990: xii-8).In other words, men have acquired a dominant position in society. Leftrealism reflects this dominance. The ethos of left realism illustratesthat certain types of behaviour that is more prevalent amongst the lesspowerful would be classed as criminal. Criminal laws were thenintroduced to reflect this concept. Rather than the criminal beingregarded as an acquiescent offender, left realism would have themportrayed as a victim of society.
Furthermore, it is from the concept of left realism that the notion ofa number of actors’, involving the offender, the police, the victimand the criminal justice system has developed. Left realismdistinguishes between a macro level of crime theory and a micro level,the former involving the sociological aspects and the latter a moremicro level involving an individual and personal viewpoint of crime(Lilly, Cullen & Ball, 1995) and takes into account the role of thevictims of crime. Constraints on space preclude a detailed discussionon left and right realism, but an overview identifies four importantfactors which are regarded as being inter-related and which contributeto a holistic image of crime on both a micro level and a moreintegrated macro level (Young, 2002). The various theories, such asLabelling Theory, represent right realism and tend to focus on theoffender and the reasons why they acted in the way they did.
The emphasis on feminism within the field of criminology evolvedthrough the ethos of left realism, where male dominance was recognisedfor its fundamental contributions to traditional criminologicaltheories. A universal assumption relates to women’s particular rolewithin society and, accordingly, studies of women offenders areconsidered particularly relevant to the sociological facets such asmorality and economic situations (Smart, 1976). It has been recordedthat 84% of known offenders in 1984 were men, from which Heidensohnnotes:
Women commit a small share of all crimes&helliptheir crimes are fewer, lessserious, more rarely professional, and less likely to be repeated(Heidensohn, 2002, 491).
Furthermore, according to Barclay (1995, page 20), just 8% of womenwere convicted of an indictable offence from a population born in 1953(cited in Heidensohn, 2002, 494). It must be noted that, whilstviolence is most often perpetrated by men, 1 in 5 occurrences ofviolence against women were committed by other women (Coleman andMoynihan, 1996, page 97). According to Gelsthorpe’s model, however, anystudies focusing on women’s criminality often tend to focus on theirgender rather than the crime itself (1986: 138 &ndash 149), resulting insweeping generalisations being made and an assumption that women aremad not bad’ (Lloyd, 1995: xvii cited in KeltaWeb, 2005).
Taken further, it has been suggested that laws are constructed andenforced by men to the disadvantage of women (Burke, R, 2001).Criminology from the feminist perspective is exemplified through eitherliberal, radical, Marxist or socialist models, the latter alsoincorporating post-modernism and eco-feminism. The significance of thefeminist stance within the criminal justice system relates partly tosociety’s perception of their biological function and lack ofrationality, in accordance with Lombroso’s theories of atavism. Thispositive philosophy is a disparate variation from classicism, and wasintroduced into criminological theory by Lombroso, Ferri and Garofolo(Williams and McShane, 1991: 35) although it was noted that Theyfailed to find the numbers of born female criminals’ marked byphysical, atavistic traits which they anticipated’ (Heidensohn, 2002,page 492). Heidensohn notes, however, that the evidence of Lombroso andFerrero’s work has survived whereas their equivalent research relatingto men did not (Heidensohn, 2002, page 493), although other researchrevealed the importance of sociological and environmental factors(Heidensohn, 2002, page 493).
The distinct theories of classicism and positivism have been recognisedin criminological studies as the two major hypotheses in the science ofpenology, conceding criminal anthropology as inherent in identifyingcriminals through their genetic structure, likening it to atavism(Lombroso, 1876). All people are considered equal according toclassicist precepts and governments are created by those individuals toprotect the people’s rights through the recognition of a socialcontract (McCoubrey and White, 1999: 60 &ndash 84). Classicists aspiretowards civil rights, realised through the law as a system of dueprocess. It is this emphasis on the social contract that compounds thedeviance as a moral offence against society. Punishment is proportionalto the seriousness of the offence and can only be justified to preservethe social contract and deter others (Williams, 1997: 8).
The constrained concept of Classicism identifies as autonomous a personwho is the result of their environment. Positivism, however, has beendocumented as either internal, [assuming an atavistic involvement ofthe psychological or biological aspect], or a sociological aspect ofpositivism which is outside an individual’s control (Burke, 2001: 272)and assumes a dependency in individuals. Positivists approach deviancefrom a scientific perspective which enables deviance to be rectifiedthrough a combination of power and knowledge. The correlation betweenpositivism and criminological theory identified criminals through aninherent genetic structure, perceived as atavistic features edifyingvillainous characteristics which could be identified throughisolationist principles and surveillance experiments and through casestudies (Lombroso,  in Williams and McShane, 1991: 35).
These sociological studies exhibited a reciprocity which was attributedto a specific social order, deviation from which society recognised asa criminal act. Positivist theory attributed this deviation to anabnormality that could be treated, with the hypothesis suggesting thatcriminals could be reformed. As the final result was intended toprotect society from harm, punishment was sanctioned to providetreatment, not to punish, with cognitive treatments involving grouptherapy sessions and the use of drug therapies to achieve theseobjectives. Conversely, Bentham and Beccaria propounded the classicaltheory of fundamental rights associated with natural law. Theirutilitarian principles of autonomy, liberty and rationalityacknowledged deviance as a rational act against the rules of societyand from which these miscreants needed to be dissuaded through theapplication of punishments (Burke, 2001: 270).
2.3 Criminological Theories
Hobbes’ observation of human actions being ultimately self-serving,including the concept of morality, related cognisance to a state ofnature which guarantees the survival of the fittest. Classicists suchas Hobbes, Bentham and Beccaria considered that deviance is an inherentcharacteristic in the psyche of all individuals (Gottfredson andHirshi, 1990), displayed as an expression of human rationality towardsthe presence of bad laws (Beccaria, 1963). Beccaria suggested thatpunishments should be consistent and logical and bound within the legalsystem.
From the basis on non-conformity to society’s rules, deviance has beenregarded as a miscreant’s response to temptation and the exercise oftheir power over others. Use of a structural method elucidatesrelationships between a hierarchy of individuals and groups which havebeen considered to be inherent within the structural approach tocriminology and, equally important, society’s reactions to criminalbehaviour. Crime tends to exhibit specific reactions against deviance,evidence of which can be seen with the Labelling Theory (Lemert, 1967)which focuses attention on the hierarchical role of crimes in society.
Control theory, meanwhile, unearths links between individuals andinstitutions, for example family background and upbringing andcorresponding behavioural actions and reactions. Hagan relates thisphilosophy to what he terms the structural study of crime (Hagan,1988: 3) and the Power-Control Theory which plays a significant rolein explaining the social distribution of delinquent behaviour throughthe social reproduction of gender relations (Hagan, 1988: 1 &ndash 287) andaffects the social distribution of delinquency. Moreover, one importantaspect of this theory is the ethics associated with crime anddelinquency, for example, the effects of gender on criminality.Gottfredson and Hirschi (1990), meanwhile, suggest that classicism isrevealed through the control theories which exhibit consequencespainful to the individual. (Gottfredson and Hirschi 1990)
Positivism in relation to criminology depended on the scale ofrationality between free will and determinism according to precepts ofCesare Lombroso whose explanations of criminal behaviour resulted inthe criminal born’ man or woman who exhibited physical attributesleading to their recognition as criminals, a situation not supported byDurkheim. Too many variables made Lombroso’s theory precarious but histypologies were correlated between certain offenders committing certainkinds of crime (Gottfreddson and Hirschi 1990). A number of othertheories exist to explain a psychological or sociological basis to thescience of criminology. Bandura and Eysenk studied observationallearning, conditioning and personality traits, whilst the Strain Theoryand the Anomie Theory of Merton blame environmental pressures ondeviance, with the Subculture Theory attributing lack of attainment tosociety’s expectations to be at the heart of offending.
2.4 Sociological Aspects of Youth Crime
Whilst all people might be considered equal according to classicistprecepts, with governments created by those individuals to protect thepeople’s rights through the recognition of a social contract (McCoubreyand White, 1999, Page 60 &ndash 84), David Blunkett singles out a specificsector of society by suggesting that:
nearly three quarters of street crime offenders are under 17 and ahard core five per cent of juveniles are responsible for 60 per cent ofoffences for their age group (Blunkett, 2002c).
Clearly, despite the introduction of innumerable projects designed tore-integrate offenders back into their communities, the growth inlawless behaviour has not diminished. Many measures to restrainunacceptable behaviour are now available, amongst which are YouthOffending Teams, Final Warning Schemes, Detention and Training Orders,Acceptable Behaviour Programmes, Parenting Orders, Reparation Ordersand Anti-Social Behaviour Orders (Blunkett, 2002c) although,retrospectively, little appears to have improved.
In December 2003 Lord Falconer of Thoroton emphasised that this:
crime and anti-social behaviour corrupts communities, eating away atthe fabric of the way we all want to live our lives (Lord Falconer,2003).
An increasing lack of morality appears to be more prevalent withinmodern society, with Chief Superintendent of Greater Manchester Policedescribing these amoral youths as feral (The Times, 2005). Despiteall the legislation at the disposal of the criminal justice system,however, the yob culture’ appears to be endemic, with the vulnerablein society more at risk of becoming victims than ever before. The mediareport lurid headlines on a daily basis: Beaten to death on hisdoorstep (Daily Mail, 2005) Beaten up on Video Phone (Daily Mail,2005) Hoody ban eases shoppers’ fear (Daily Mail, 2005, page 8). Theedition on May 19th 2005 reported how thugs attack a funeral car’ bylaunching an 8 foot length of wood through the windscreen of the cartravelling immediately behind the hearse. It has been reported that&hellipsome forces are not making good use of legislation and tackling theimitation firearm problem (Deputy Chief Constable, Daily Mail, 2005,Page 8) when children, some as young as 13, routinely carry replica BBguns, which can cause serious injury to targets up to 30 yards away,around the streets.
In 2002 the Home Secretary intended:
to deliver real justice to victims and the wider community and strikea fair balance between the rights of victims and the accused(Blunkett, 2002a).
The Legal Action Group suggest that victims’ and defendants’ rightsare mutually incompatible (Cape, 2004, page 1) and suggest thatvictims rights are not being catered for their rights are neitheracknowledged nor respected. However, they also ascertain that, inmaking it easier to convict defendants is not in the best interests ofthe victims. The fragility between rights to security and freedom andthe obligation to protect communities, reflects a natural result ofshared morality without which rules would lack meaning (Pampel, 2000,Page 67). This factor was clearly recognised by David Blunkett whoacknowledged &hellipthe public felt that the system had swung too far infavour of the accused (Blunkett, 2002a). This intensely deep-rootedproblem of lawlessness within communities cannot be solved by thepolice alone. Henham observes that this can only be achieved through:
disregard of formal legal controls which prove an obstacle to theproduction of a high conviction rate although he acknowledges thatdue process maintains an adherence to courtroom procedure and protection of the individual (Henham, 1998, Page 592).
Many organisations have highlighted the growth in recorded crimedespite measures in place to punish the offender. Punishment falls intovarious areas from incapacitation to retribution, deterrence torehabilitation. A large number of theories abound, all attempting toexplain the reasons behind criminal actions. These theories investigatethe backgrounds of criminals, their psychological and physicalattributes and their positions in society together with their abilitiesto cope with expectations placed on them by society. As yet there hasbeen no definitive answer and, due to so many variables, there possiblynever will be. Controversially, Durkheim believed that a certain amountof crime failed to harm society and was normal and valuable in ahealthy society (Cotterell, 1992: 159), with the ideas of right andwrong being reaffirmed through the existence of crime and punishment(Pampel, 2000: 59).
This reflects a natural result of shared morality without which ruleswould lack meaning (Pampel, 2000: 67), promoting the concept of thedurability of social life inevitably assuming a definite form&hellip.Individual and collective morality would assume that offenders shouldbe punished to maintain the stability of the community and maintaintheir safety. Our collective conscience ensures that the majorityaccept the rule of law and accept that deviance needs to be punished.Psychologically, restorative justice is assumed to invoke aestheticsentiment of forgiveness for miscreants and release for victims. Whatit fails to do is provide society with assurances that their safety andintegrity will be maintained in an atmosphere where the offenders’rights appear to be upheld in variance with those of the victim, or thefundamental rights the victim is entitled to expect.
A personal view could be recorded which considers that restorativejustice exhibits illusionary tendencies to pacify the reformers at theexpense of society’s status quo. Clearly, not a supporter ofrestorative justice this writer intuitively distorts the semantics andcognitively refers to this concept as retributive justice: more aptlynamed, and far more appropriate for the majority of offenders who,regardless of intervention programmes to rehabilitate them willcontinue to offend despite society’s best efforts.
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