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The relevance of sociology to the study of criminal justice is assessed and analyzed. The Criminal Justice System (CJS) is conceptualized and linked to broader sociopolitical factors and influences. Components of the CJS are examined in light of sociological perspectives. Trends and directions of research, theory, and policy formation are explored.
- The Origins of the Concept
- Practical Impact of the Concept of the Criminal Justice System
- Components and Goals of the Criminal Justice System
- CJS and the Courts
- The Debate on the Definition of Deviance and Criminality
- Changes in the Philosophy of Punishment
- Emergence and Hegemony of the Medical Model
- Criminal Justice Research
- Some Future Perspectives
In the last 40 years and especially since the turn of the twenty-first century, the study of criminal justice (CJ) has burgeoned with increasing numbers of programs at all academic levels devoted to this specialty. This trend has resulted in a progressive growth of CJ doctorates and concomitant reductions in the influence of other disciplinary professionals on the course and trajectory of theory, research, and policy formation in the field. While sociology departments have retained perhaps the most substantial outsider effect on CJ study of all disciplinary approaches, some scholars suggest that this is a time-limited effect that will diminish as CJ establishes its full autonomy (Wrede and Featherstone, 2012). Alongside the remarkable development of CJ programs, sociology departments have retained much of their criminology curricula, resulting in extensive duplication of content (Maddan and Hartley, 2011). Students and scholars with a greater policy orientation tend to gravitate to CJ specialization while sociological criminologists, especially those theoretically inclined, tend to study the contextual, ideological, and cultural dimensions of both crime and its study by CJ practitioners (Hauhart, 2012).
This research paper will utilize sociological perspectives to examine: (1) the roots of the idea of a criminal justice system (CJS); (2) the implications of this notion in practice; (3) its elements and functions; (4) its relation to the courts; (5) the distinction of crime and deviance; (6) implications for corrections; (7) the interplay of legal and medical models; (8) research priorities in the field; and (9) future directions in the CJS. The emphasis here will be on how a sociological approach affords certain analytical benefits not achievable from a purely criminal justice perspective. The intent here is to demonstrate the independent utility of a sociological study of criminal justice while not challenging the legitimacy of the concrete study of this area. A distinction should be drawn at the start between criminal justice as a study and the CJS. Criminal justice studies the CJS for the purpose of preparing and informing practitioners, enhancing the effectiveness of programmatic efforts to address the social problems of crime by providing data, explanation, prediction, and control. Its task is to support the criminal justice providing the broader and more fundamental surround within which criminal justice operates as both study and system. To posit that there is in fact a CJS is to construct it ontologically as an interconnected, interactive, functional feature of a broader social system. Whether criminal justice does indeed function systemically is itself a very general but still empirical question, which has yet to be fully or persuasively established by the field of criminal justice study. Indeed, the legitimacy of criminal justice study does not depend on the actuality of the CJS, but it does generate a paradigmatic approach that an emerging field of theory and research might use effectively to organize its agenda.
The Origins of the Concept
CJS is a fairly recent acquisition of the scientific and professional vocabulary. Since the publication of the United States, President’s Commission on Law Enforcement and Administration of Justice report ‘The Challenge of Crime in a Free Society’ (1967) (https://www.ncjrs.gov/pdffiles1/nij/42.pdf), the term has been used with a somewhat precise meaning.
However, in the process, the Commission’s investigation led to the claim that the goal of the ‘war on crime’ – the fight against insecurity and the foundation of public safety of the persons, goods, and moral integrity of the citizenry – necessitated a comprehensive concept inclusive of all the institutions concerned in this objective. The breadth and complexities of this conceptualization led to the identification of incongruities between some of its parts, allowing critics to call it a ‘nonsystem,’ referring to the apparent incoherences and contradictions in the functioning of the overall system.
It became evident for the Commission that there existed a real and a virtual interrelationship, reflecting an interdependency between legislations, institutions, organizations, and scattered offices throughout the machinery of criminal justice, whose goal is the maintenance of public order, the safeguard of liberty, physical integrity, and concern for the victims of the failings of the protective shield, extended by the law and protected by the Constitution. Recognizing these historically and nonlogically ordered institutions, laws, services, and so forth, the Commission wanted to give a degree of coherence to all of them in order to secure a better, more efficient coordination, built around a common goal: assuring, under the supremacy of the law and the Constitution, equal justice and protection to everybody. Despite the criticism, the concept of the CJS was born. Thanks to this organizational principle (a ‘system’ necessitates some logic), overlapping jurisdiction, duplication of services, and irrelevant goals or functions were identified. The Commission’s logo – with its input and output/entrance and exit design – illustrated graphically how, from arrest to release, from sentence to punishment, the whole process of criminal justice constituted an administrative and logical ‘whole.’ This holistic approach provided the reformer with a blueprint and a compelling agenda for reform.
However, these origins of the CJS should not hide the basic fact that the inspiring and commanding center of their systematizing approach can be understood as a development of the code d’instruction criminelle of 1808. This code was characterized by: (1) rigorous penal procedural rules; (2) the availability of material and technical conditions to implement those rules; (3) a reasonable degree of coherence among the constitutive elements of the system, principally the offices of the prosecutors, magistrates, and other officers of the judiciary. Similar transformations took place in other Western countries that incorporated a systematic approach. The principle of the separation of powers, the presumption of innocence, and the independence of the judiciary were nowhere threatened by the emergence of the CJS, with the notable exception of course in the totalitarian countries.
Practical Impact of the Concept of the Criminal Justice System
A radical transformation in public administration began as early as the middle of the nineteenth century, accelerating after World War I and continuing beyond World War II. One result was the emergence of an activist and interventionist social policy. A similar transformation in criminal justice administration did not occur until later. In the process of its consolidation, it confronted the cultural revolutions of the 1960s and 1970s, and even some basic principles of the penal procedural law underwent some changes.
Among the consequences of the development of legal structures and philosophies were a loosening up of the system, allowing an increased role for a defense attorney (human rights legislation had a major impact on the proactive role of the defense councils), and resulting in an increase in the burden carried by law enforcement agencies to accommodate the increasing demands of defense attorneys as well as rules edited by commissions of human rights (the need for ‘foolproof’ proofs required by tribunal became more cumbersome and proceedings slowed down notably). The increase of the workload in the prosecutor’s offices, as well as at the courts, was not in step with the necessary budgetary requirements allowing a decent discharge of the increased workload devoluted to the CJS in charge of the ‘postarrest’ phases. The well-known, yet little understood, consequences of overloaded courts; plea bargaining; vagaries of correctional strategies, inequalities, and extravagant; burdensome cost increments escalated from the 1980s onward.
Additionally, there was a growing incoherence between segments inside the diverse components of the CJS. Undue competition has arisen between services, which should have been submitted to rules prescribed by their common goals. Moreover, a growing politicization has taken place. The power of unions is increasing everywhere: the judges, the prosecutors, and the police are organized in their own unions, and correctional officer unions in some states, particularly in California, constitute major veto groups. Some unions of magistrates, particularly in France and Italy, are playing an active and sometimes radical role inside of the CJS. Thus the coherence of the CJS has suffered from the centrifugal forces in its own ranks. This worldwide phenomenon is affecting open societies, and while the European continental nations, in-line with their centralizing traditions, are seeking new measures in tune with their traditions, all of them are also facing similar problems. Problems of CJS incoherence have become exacerbated by severe budgetary constraints since 2008, particularly in the US with its comparatively complex legal/juridical system, diverse demographics, diverging yet stringent crime philosophies, and harsher sentencing practices.
Components and Goals of the Criminal Justice System
The 1967 Presidential Commission, which is de facto the originator of modern research on crime, delinquency, victimology, and criminal justice agencies, introduced and somehow accredited a rather artificial distinction between research carried out on the CJS and criminology. This discipline was related, if not assimilated, to etiological research on crime causation. Its continental origins were stressed. Criminal justice research, born of the common law tradition, postulated the existence and interdependence of all components of the CJS, including law enforcement, criminology, criminal justice administration, prosecutor’s office management, sentencing guidelines for judges, and so forth (See Section Criminal Justice Research).
Many of the major changes that the CJS underwent are related to the sudden surge of the world economy and commerce in the direction of globalization. Accordingly, the problems facing the CJS became global, embracing the whole world. One has to face the fact that crime and justice have to be addressed in an open world, at the level of the global economic and financial system working with the tools of the newest information and technology. The sociopolitical system and the political power structures are closely related to the new financial, commercial, and economic trends and powers. The magnitude of the challenge facing all the components of the CJS is tremendous. Consider, after 1980, that the volume of the sales of foreign stocks and bonds increased drastically on the market (Adler et al., 1994). Moreover, capital movements, legal and nonlegal labor migrations, corporate alliances and partnerships, proliferation of tax havens, money-laundering practices and controls, cyber attacks, hacking, pirating, and so forth, have rendered many crimes global in nature.
However, many countries are largely decentralized and have residues of common law traditions. There, the integration and internal coherence of the CJS is limited; rather the tendency is toward internal incoherence and diversity. Thus it is not surprising that these countries, illustrated by the USA, are much slower to ratify or contribute to international criminal and penal jurisdiction. An example is the US government’s refusal to adhere to the Rome convention sponsored by the UN to create an International Criminal Court (ICC) although a working relationship of engagement has been established since 2010 (http://www.state.gov/j/gcj/us_releases/remarks/2010/143178.htm). In the second decade of the century, the US has extended greater efforts to collaborate with international bodies such as ICC but a delicate line has to be threaded due to both the mode of operation of the utter complexity US crime control policy and political imperatives and ideologies.
Criminal Justice System and the Courts
In this context of global integration, the thrust toward internationalization increasingly impacts local crime scenes (arms dealing, Internet crime, terrorism, migration, etc.) so that, directly or indirectly, they become integrated into international activities through the operation of offshore banking; industrial espionage; unofficially sponsored hacking into corporate, financial, and national security institutions among other devices; intermingling, sometimes, with secret service operations (e.g., ‘evidence’ of Saddam Hussein’s WMDs) (Weiner, 2008); and with illegal merchandising or human trafficking, tax frauds, illegal financial contributions to political campaigns or parties, and so forth. Money laundering is the lifeline of all these criminal and illegal activities. Out of necessity, a new international CJS is emerging with the support of the UN and the European Union (EU). Other tribunals in Africa and Asia are in process of being established. Especially in the face of international terrorism, support for such tribunals is growing in the US along with opposition to internationalization of the CJS.
One can see that open democratic societies are building new lines of defenses using legislations and sharpening legal tools available to the police and prosecuting attorneys. A new Europe-wide legal system is being created and is slowly and systematically building structures and defenses, which are both reactive and proactive. The building of such a coherent system was, in part, a response by the CJS to challenges initiated in continental countries under the auspices of the EU (http://www.haguejusticeportal.net/?id=2). Threats to the Euro currency by failures of and fraud by financial institutions, national banking crises, and fear of extreme exchange rate fluctuations also are precipitating higher levels of crossnational collaboration than in previous decades.
The Debate on the Definition of Deviance and Criminality
In the 1970s, sociology questioned what distinguishes a ‘criminal’ act from a ‘deviant’ one, thereby adding a substantial burden to the functioning of the CJS. Such questioning created difficult dilemmas for the CJS, whose task is to enforce the existing laws. Problems arose as to where to draw the limits of the interventions of the jurisdictions of the CJS agencies in controlling or repressing the ‘criminal’ and unlawful activities of large, and certainly vocal, minorities. The frontiers between crime and deviant behavior became blurred. The law enforcement agencies, occupying the first line of defense in securing public safety, became hesitant in the application of the law. This environment of questioning and doubt encouraged the increasing activism of human rights defense groups, critical of the law. And when the police tried to enforce questionable laws, they were frequently confronted by activist groups, sometimes with violence. Many court actions followed violent confrontations in the streets. Also, accusations against the police for being prejudicial created a major impediment to efficient policing.
Variations in local CJS and community relations, contrasting values between law enforcement personnel and civilians, and inconsistencies of enforcement, prosecutorial, and judicial and correctional policies have all contributed to confusions, conflicts, and unpredictability of the entire range of crime response approaches. External review boards, internal examiners, accountability requirements, unending assessments, and so forth all encumber the task of securing public safety within a civil rights framework.
The manifold increase in the charges burdening the prosecutor’s offices, mainly in major cities, reflected itself in the overflow of cases brought in front of the judges. Plea bargaining before the trial (essentially a kind of out of court settlement between the prosecutor and the defense council) became an accepted way of proceeding. For several decades it has been the only expedient to avoid the complete paralysis of the whole judicial process. These plea bargains have resulted in some gross miscarriages of justice that have become broadly recognized (Bibas, 2004).
Morally as well as legally, and sometimes clearly illegal, plea bargaining is still currently and fairly widely practiced in the US courts system. One notes that sociologists frequently criticize this practice, while many CJ professionals accept the expedient as at least a necessary one. Certainly in the US there is more support for plea bargaining than elsewhere (http://www.debate.org/opinions/does-plea-bargaining-undermine-the-criminal-justice-system). In contrast to the US, these practices are strongly rejected by the European continental legal system, but the future of its integrity remains an open question. The caseload of the courts is increasing constantly and political power negatively confronts the judiciary in several important Western European countries. The main issues are political corruption, bribery, financial deception, and abuse of power. We have yet to see the outcome of this type of conflict inside of the continental system where political power negatively confronts the CJS.
Changes in the Philosophy of Punishment
Imprisonment was a notable advance over the all-too-common previous method of punishment: the death penalty. Virtually from its beginnings imprisonment developed in response to religious concerns (largely from nonconformist denominations – Methodist, Congregationalist, Presbyterians, Quakers, Baptists, etc.), and was informed by ideas of the continental Enlightenment, as well as English social contract and utilitarian theories, and the views of Scottish moral philosophers.
In the north-east sector of the US these religious and intellectual forces combined to encourage a massive social experiment in punishment, which was grounded in the emerging belief that humans are social beings possessing ‘natural’ or inalienable rights, capable of reason, and inherently good or virtuous: the infant cannot be evil. From this perspective, the logic of imprisonment would not only punish the wrongdoer, but seek also to rehabilitate that wrongdoer, as well as to deter others. Elmira, Auburn, and Cherry Hill were famous attempts to express this evolving penal philosophy, and de Tocqueville’s tour of these institutions was an example of European continental interest.
This complex and integrated humanistic view, issuing from the Enlightenment, was challenged by developments in sciences such as medicine and psychiatry. These disciplines understood criminal acts to arise from personality disorders rooted essentially in social, biological, or psychological conditions. In a sense, the ‘medical model’ retained but transformed elements of the ‘humanistic model.’ The goal of rehabilitation was retained, but its justification was to be found and legitimized in scientific methodology. One consequence of this scientific approach, as it gained influence, was to impact the CJS through legislative reforms and judicial practices, for example, the rapid spread of indeterminate sentences, and the transferal of the principle of rehabilitation from being a concern of the larger society (religious activists, legislators, educators, etc.) to become the concern of scientific practitioners encompassing all sorts of therapies, treatments, and rehabilitative initiatives.
Emergence and Hegemony of the Medical Model
The nature of the scientific method is the permanent questioning of existing proofs and practices. For example, in medicine, it results in a continuing revision of therapeutic practices and rehabilitative techniques. Naturally, a continuing tension and conflict develops between the ever-changing medical therapeutic approach and the desire of the CJS to retain humanistic principles of equity, rights, and equal treatment before the law. This situation threatens its coherence and creates an increasing vulnerability for the CJS, especially to its claims of legitimacy.
The challenge to legitimacy was not limited to the confines of the CJS, but permeated the entire open, pluralistic, humanistic society. Everywhere, a profound crisis of values occurred: in the family, and in institutions of authority, including the medical and academic communities. The identification of who or what was responsible for this turmoil emerged from a variety of diverse sources, making it impossible for a generally agreed upon understanding to be reached, and so disarray prevailed.
The impact on the CJS, which became closely associated with the medical model, was disastrous in that it allowed for both an immunization of the ‘underclass’ against claims of criminal behavior, and the emergence of new prophets with new social and cultural constructs. An attempt to correct this situation, and to devise a means of bridging the chasm separating the reality of crime and the CJS, was Von Hirsch’s (1976) doctrine of ‘just deserts.’ This doctrine compromised law and order while accommodating the new forms of behavior. The end result was a temporary compromise in which the CJS maintained and protected the core values concerning material and personal security, while adapting itself to the demands of the ‘post-Woodstock’ society.
Reactions counter to the delegitimation process rose in the 1990s and dominated thinking for about 20 years. This reaction emphasized a return to a simpler certainty about the proper response to crime with determinate sentencing, reduction of funding for rehabilitative and educative focus, deemphasis on alternative correctional approaches, treating juvenile offenders as adults, etc. More recently, efforts have been directed toward addressing deep and long-term concerns regarding overcrowding, high rates of recidivism after long sentences, juvenile transitioning to adult crime, funding reductions for corrections, gun violence, victim support, and punitive approaches to drug-related offenses (http://thecrimereport.org/2012/04/30/2012-04-crime-and-justice-in-america-1975-2025/).
Criminal Justice Research
While criminological research of a sociological stripe has focused on etiological areas, CJS research has been primarily institutional. As in all such distinctions, the differences in fact are less determinative than in definition. ‘Corrections,’ a new designation for penology, was a major aspect of research on the CJS. These distinctions also reflect a growing attention to the evolution of ideologies, to new tendencies of penal philosophies, justifying research on alternatives to the actual CJS, which answers to the needs of victims and new sentencing philosophies. The analysis of the performance of the CJS, evaluation of alternatives for this system, and all kinds of innovations, were also an integral part of research on the CJS. Also, the treatment of offenders, their resocialization, programs of crime prevention, and experiences with ‘restorative justice’ became the spearheads of research in criminal justice.
Some Future Perspectives
The real and symbolic ruins that were the reality of the CJS under the conditions of this temporary compromise were, fortunately, addressed by H.L. Packer (1968). Packer identifies two models. The first is the ‘due process model,’ characterized by the jurisprudence of the Warren Court, in which most of the odds were placed against the defender of public safety and order. This model amplified the ‘rights’ of the individual, and encouraged a critical, reactive attitude on the part of the judiciary. This model has a rule-oriented rather than a substantive-oriented approach.
The second is the ‘crime control model,’ which emphasizes the existence and exercise of official power. Its validating authority is ultimately legislative (although approximately administrative). It can be viewed as consistent with, and a continuation of, humanistic-Enlightenment principles. In light of the lessons of the eighteenth century, and because Packer’s theories are deeply rooted in humanistic- Enlightenment principles and now associated with conservative political orientations, his crime control model prevailed in the recent past but has come up against popular sentiment that counters mass incarceration, particularly for nonviolent offenders. A synthesis of models seems to be taking shape as crime control remains a significant concern, especially in relation to transnational crime, while alternative means of criminal justice are coming to the fore, including drug courts, restorative justice, community-based corrections, electronic supervision, community and military service, etc.
In conclusion, the contributions of the social sciences to the CJS are varied. In continental Europe, the social sciences, as an academic discipline, had limited influence, notwithstanding contributions of outstanding scholars. In North America the social sciences have established a strong academic position and exercised a direct influence on the CJS. This influence also included a contribution to the intellectual and moral crises, which characterized the 1960s and 1970s. This was largely due to an epistemological crisis, which shook the very foundations of social and behavioral sciences. Whether or not they will recover their empirical scientific tradition is still an open question.
That crisis has largely been resolved in the intervening decades as varieties of criminological and criminal justice studies have applied postmodern, poststructural, cultural, peacemaking, radical perspectives, etc., as well as conventional crime control approaches in numerous and proliferating theoretically informed empirical studies. As the study of the CJS has grown and absorbed diverse tools, sociological influences have both expanded and occupied a distinctive, even privileged location in this emergent, no longer nascent field (Eagle and Barnes, 2008). Alongside other disciplines including psychology, anthropology, biology, sociology have contributed substantially to the advancement of criminal justice study and to the CJS itself, and will continue to do so deeper into the twenty-first century.
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