What is Criminal Justice?
Criminal Justice is the system by which police, courts, and correctional institutions enforce the basic rules of any society, as expressed in its criminal law. These agencies discharge perhaps the most vital responsibility of government.
Without an effective system of criminal justice there can be no government in any realistic sense; anarchy prevails and no man is secure in his person or property. With an effective system, government can operate, and order is maintained. The order so imposed may be tyrannical and unfair or it may be democratic and decent, depending on the justness of the laws and the character of the government that administers them, but in either case enough social control is maintained to allow the society to function.
Without reasonably broad public support, any system of criminal justice will collapse, to be followed by anarchy and ultimately to be replaced by a different system of criminal justice. Most laws are obeyed, voluntarily by most people. If it were otherwise, the machinery of justice would be totally inadequate. Nevertheless, all communities from time to time suffer partial breakdowns in criminal justice, with widespread disregard of law in general or of certain laws in particular. Sometimes lawlessness takes the form of outright defiance of orderly government, which, if indulged in by sufficient numbers of people, can quickly turn into anarchy and revolution.
Substantive Criminal Rules
Some types of conduct, such as murder and robbery, are universally condemned as criminal with general public understanding and approval. Other types of conduct may be criminal in one place but not in another, depending on the prevailing views of those having the power to legislate. Variations also occur in point of time within a single community. Conduct regarded as criminal in the 1960's may be regarded as innocuous or even praiseworthy in the 1970's; views may also change as to the efficacy of criminal justice to deal with wrongful activities. Whatever views prevail at any given time and place are embodied in legislation defining certain lands of conduct as criminal. Such legislation is voluminous, with penal codes sometimes running into thousands of sections. The temptation is strong, almost irresistible, to dump all kinds of social problems into the hands of the police, the courts, and correctional institutions, whether or not they are appropriate agencies to deal with such problems.
Just as there are variations from place to place and from time to time in the kinds of conduct made criminal, so also there are variations in the penalties imposed for crimes. Fines and imprisonment are the most common sanctions, and appear to be used everywhere, though armed robbery in one jurisdiction may carry a maximum penalty of five years in jail, while elsewhere it is punishable by 30 years' imprisonment. A well-known sanction is death, but the death penalty is being increasingly questioned and has already been discarded in many jurisdictions.
The traditional theory of punishment was that it should fit the crime, and penalties were rigidly fixed. That theory still has some validity in practice, for it is customary to fix maximum and minimum limitations on punishments for particular crimes. Nevertheless, it has been partly superseded by the view that punishment should fit the criminal, with the objective of reforming him or keeping him from committing further crimes, and deter others from following his example. A single form of punishment, such as imprisonment, may in theory accomplish all of these objectives simultaneously. Such as keeping the man out of trouble while he is in jail, inducing him to mend his ways, and warning others against committing the same offense.
Implicit in all forms of punishment has been the belief that men possess free will, that they can refrain from crime and that if they fail, it is because of greed, lack of self-discipline, or other personal fault. There is a widespread tendency to question this, and to assert that the causes of crime lie in poverty, poor housing, inadequate education, and similar social ills. Those who so argue call attention to the fact that most persons accused of crime have this underprivileged background, but they fail to explain adequately why the rate of crime has been rising at a time when society has been growing more affluent, and many fundamental social reforms are being accomplished. In any event, such a philosophy is not and cannot be the premise of criminal law. It holds all men accountable for their conduct except those so young or so mentally deranged as not to be responsible.
The basic concepts and procedures of criminal justice differ markedly among nations, a difference that stems from their adherence to one or the other of the two great legal systems. The world is generally divided into (1) the common law countries - England, the United States, and most commonwealth countries, including Canada and Australia; and (2) the civil law countries, whose system (based on Roman law) emerged on the European continent, then spread to Latin America and various Asian and African countries formerly dominated by the nations of continental Europe. See also civil law; common law.
Criminal Justice in England and the U.S.
England originally developed the "adversary" system of common law procedure. Although the system of criminal justice in the United States is historically derived from that of England, some 300 years of separate development have led to significant differences between the two systems. Both the differences and the remaining similarities are explored in the following discussion of the police, the courts, and correctional institutions.
In both England and the U.S., a primary function of the police is to prevent crime. Despite the modern prowl car, there is no deterrent like an American policeman on a street corner or an English constable walking his beat or covering it on a bicycle.
The English policeman ordinarily carries a nightstick, but no gun. The American policeman, on the other hand, almost invariably carries firearms. This may be explained in large part by the fact that firearms are easy to get in the United States and are possessed by a vact number of private persons, including those engaged in criminal practices. In England, firearms are scarce, and their possession is carefully restricted.
Once a crime is committed, the policeman has additional functions: to investigate what happened and to apprehend the wrongdoer. Depending on the seriousness of the crime, the person accused may be arrested and taken into custody to await court action, or merely handed a summons that directs him to appear in court at a certain time and place.
In many cases the policeman will also have to appear in court to testify as a witness, if the accused does not plead guilty. He may also be required to prosecute the charge. In the United States it is only in very minor cases that policemen act as prosecutors, presenting the evidence against the accused. In England the police act as prosecutors in all except the most serious cases. In both countries, when they do not so act, the burden of prosecution is assumed by a professionally trained lawyer.
There is a sharp contrast between public attitude tpward the police in England and the United States. The English "bobby" enjoys a better public image than his American counterpart, perhaps because he is more carefully selected and better trained, or perhaps because he is dealing with a more homogeneous and more law-abiding population. Police in the United States have a job that is, at times, bewilderingly complex. But there are persistent complaints (some of them coming from responsible sources) that many police are brutal or corrupt.
Once a man has been arrested, he must be brought before a judicial officer without delay. If he has been given a summons, it may be days or even weeks before he is required to appear in court.
If a person is charged with a minor offense, such as a traffic violation, his case may be disposed of on his first appearance in court. Very often he pleads guilty, in which case the court pronounces sentence forthwith. If he pleads not guilty, a trial is held, but it is usually a short and informal proceeding. Ordinarily there are no lawyers present, either for the prosecution or for the defense, only the man accused and the police officer, and possibly another witness or two. The police officer testifies and questions the other prosecution witnesses, if any, and the defendant then has the right to cross-examine them. The defendant can take the witness stand and testify in his own behalf, but he need not do so. His right to remain silent is protected by the constitutional privilege against self-incrimination. If he does take the stand, he is subject to cross-examination like any other witness. He may also call other witnesses, who are also subject to cross-examination by the prosecution. After all the witnesses on both sides have been heard, the court makes its decision, either dismissing the charge or finding the defendant guilty and imposing sentence on him.
The tribunal before which such a proceeding takes place is commonly called a "magistrates' court." In the United States, this consists of a single judge (sometimes a justice of the peace, an elected official), who is compensated for his services and who ordinarily does not enjoy much prestige. In England, where there are few professional judges devoting all or a substantial part of their time to criminal work, a magistrates' court, even in a large city, usually consists of three to five justices of the peace, who serve part time without compensation and who, more likely than not, are laymen. They are appointed by the lord chancellor on a merit basis, politics playing little or no part, and they enjoy high prestige. They are assisted by a legally trained clerk.
Even more important than the differences just noted is the fact that the English magistrates
are empowered to decide a far greater range of cases than their American counterparts. American magistrates are ordinarily limited to trying petty offenses that carry small fines or very short prison terms. This restricts them in practice to hearing and determining little more than traffic offenses. English magistrates, on the other hand, can hear and decide all crimes but a few of the most serious ones. In some cases they may decline to handle a case, thinking it can be better dealt with in a higher court. In certain other cases, the defendant has a choice of whether to stand trial before a magistrate, or whether instead to go to a higher court and have a trial by jury.
More Serious Crimes
When the crime charged is beyond the jurisdiction of the magistrates' court, whether in the United States or England, that level of court still has a function to perform. It is not to "hear and determine" the case, but to attend to preliminary matters.
The most important of these is to decide whether there is sufficient evidence to justify holding the defendant for trial in the higher court. If so, he can be released on "bail" or kept in custody. If not, the charges against him will be dismissed. In England, a preliminary hearing is conducted in every serious case, and in it the prosecution reveals to the court and the defendant all the evidence it intends to produce at the trial. The U. S. preliminary hearing is often dispensed with, either because a grand jury (which no longer exists in England) has already determined that the defendant should be brought to trial or because the defendant waives his right to the preliminary hearing, thereby conceding that the evidence is sufficient to warrant trial. When a preliminary hearing is held in the United States, the prosecution need not produce all of its evidence but only so much as will show that a trial is justified.
There are also marked differences between the two countries as to bail practices. In England the magistrates may refuse bail if they anticipate that the defendant may commit other crimes while at liberty before trial, or that he may attempt to intimidate witnesses or suLforn perjury. If they allow the defendant's release, they fix bail at a modest figure, and neither require nor allow a bond by commercial surety. In the United States, a magistrates' court cannot refuse bail, the theory being that no man can be deprived of his liberty until proved guilty. A magistrate can, however, fix bail so high that the defendant cannot raise the money or secure the necessary bond. The effect is to accomplish surreptitiously the preventive detention that is openly allowed in England. The practice of fixing high bail and relying heavily on commercial bonds has led to serious abuses in the United States. Poor men who could safely be trusted to return for trial are sometimes jailed, while more prosperous men are released, sometimes to "jump bail" and never return. There is a growing movement to reform bail practice, the favorite remedy being to allow the release of men with jobs, homes, or other roots in the community on their own "recognizance," a promise to return to stand trial.
Right to Counsel
During preliminary proceedings at the magistrates' court level, another important step is to advise the defendant of his rights and to see that he has a lawyer if he wants one. Every defendant is entitled to be represented by a lawyer at his trial, and if he cannot afford to pay for such service, legal representation will be provided at public cost. This is true both in the United States and England, but the methods of providing legal representation are markedly different. In England the legal aid system spreads the work of defending persons accused of crime throughout the entire profession, as all those who wish to participate may do so and be paid normal fees. In the United States the defense of accused persons tends to be done by a few lawyers. Apart from a few specialists in criminal law who take cases for private fees, most defense work in most American communities is handled by legal aid and public defender offices, in which a few lawyers are employed full time to represent poor defendants.
Just as the defense in a serious criminal case is entitled to be and usually is represented by a lawyer, so also is the prosecution. Again this is true in both England and the United States, but again there are marked differences in the methods of selecting such lawyers. In the United States, the standard pattern is to entrust the work of prosecuting all serious criminal cases to a "district attorney", who is usually an elected official. In England there is no district attorney. Instead, prosecution is entrusted to private lawyers on a case to case basis. A lawyer may be acting for the prosecution one day, and the next day, in another case, acting for the defense, so that there is little chance of his developing either a "prosecution mentality" or a "defense mentality," or of his seeking to make a political record of convictions.
The defendant may still plead guilty, in which case no evidence need be taken. If he pleads not guilty, the prosecution's witnesses are first examined and cross-examined, then the defense witnesses likewise. The defendant, protected by the privilege against self-incrimination, can testify or not as he chooses.
One major difference between the trials of serious crimes and of minor offenses is that in the former a jury determines guilt or innocence. The judge is limited to presiding at the trial, ruling on evidence and other procedural questions, and imposing sentence if the defendant is found guilty. Ordinarily, as noted earlier, the judge has wide discretion in imposing any sentence within the legal limits prescribed for the offense of which the defendant has been convicted.
In either the United States or England, the accused in a serious criminal case has a right to trial by jury. In England, the accused who wishes to waive this right consents to a trial forthwith by magistrates, but in most serious cases, like murder, a waiver is impossible. In the United States, the accused is ordinarily permitted to waive jury trial in any type of case.
In choosing between a fine, prison, or probation, the judge is ordinarily guided by a pre-sentence report. The investigation is ordinarily conducted by a probation officer, who looks into the offender's background, character, attitude, problems, and feelings. The report is of crucial importance in guiding the judge as to what disposition should be made.
In neither the United States nor England is the prosecution allowed to appeal from an acquittal. If the defendant is convicted, however, he may seek review in a higher court. In the United States, the defendant is entitled to one appeal as a matter of right, with further
appeals possible at the discretion of the reviewing court. In England, an appeal as of right is available only in a minor case tried by magistrates. In a more serious case tried by a higher court, permission to appeal must be granted by the court of criminal appeal. Further appeal to the House of Lords is very rare, and granted only at the discretion of the court.
The U. S. appeal is usually limited to the propriety of the finding of guilty and the legality of the sentence. In England, both of these questions are open on appeal, but so is the question of whether the trial court properly exercised its discretion in imposing a sentence that is within legal limits. The English court of criminal appeals can reduce a grossly excessive sentence.
Once the procedure of appellate review has been completed in England, the work of the courts is finished, the only relief remaining to the defendant being executive clemency. There are no judicial post-conviction proceedings. In the United States, on the other, habeas corpus and other post-conviction remedies are available to test the legality of the defendant's imprisonment after full trial and appeal.
In both England and the United States the case of a juvenile is generally handled differently from that of an adult. The juvenile, if taken into custody, is supposed to be held in a special detention facility apart from adults. He may very well be returned to his parents' custody without bail, pending an investigation by a caseworker employed by the court. A hearing is held, but it is less formal than an adult trial. In both countries the juvenile can and probably will be represented by counsel. But the public is excluded, and no jury is present. The court does not decide whether the youth is "guilty" or "not guilty," but whether he is "a juvenile delinquent." If so, it prescribes "appropriate treatment," which might be confinement in an institution for the training and rehabilitation of similar young offenders. The proceedings do not leave a permanent black mark on the juvenile's record, for he is not "convicted" of a "crime."