Law, Power and Justice in England and Wales (Law, Power, and Justice in Comparative Perspective,)


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Keywords: American criminal justice system , crime rates , crime trends , punishment , imprisonment.

Comparative Criminal Procedure

Criminal justice systems in developed Western countries are much alike in form, structure, and function. They encompass written criminal codes; professional police, prosecution, and judicial systems; and a variety of pretrial, community, and custodial corrections programs and institutions. Details vary. In most countries, judges and prosecutors are nonpartisan civil servants; in the United States and Switzerland, many prosecutors and judges are elected or appointed by politicians.

In expediency principle systems, prosecutors may choose whether to prosecute a case on the basis of a range of practical and policy considerations. Judges—and sometimes juries—in theory are blank slates and consider only the evidence presented and are mostly passive receivers of information. Some countries including the United States, Canada, and England and Wales operate juvenile courts that are in effect criminal courts for young offenders, and many young offenders are transferred to criminal courts and sentenced as if they were adults.

Some countries, most notably in Sweden and Finland and to a large extent in Belgium, do not have special courts for juveniles, and set the age of criminal responsibility at fifteen in Belgium except for homicide, eighteen.

Michael Tonry

This means that criminal or juvenile courts have no role in responding to serious wrongdoing by young offenders; social welfare, educational, and mental health agencies must deal with them. Germany has special youth courts for young offenders up to age eighteen, young offenders may not be transferred to adult courts, and most eighteen- to twenty-year-olds are handled as if they were younger than eighteen.

In New Zealand, almost every young offender must be dealt with by a restorative justice-style conference either to determine the punishment or to recommend the punishment to the judge. Although the broad outlines of criminal justice systems are much the same, there are important differences in detail. This handbook deals mostly with the American criminal justice system.

It is important, however, to remember that American approaches, policies, and institutions are not the only, or often the best, ways to address particular issues or problems. In three respects the American system is unique.

The first is its acute politicization. Since the mids crime and punishment have often been treated as major ideological and partisan issues in American elections Beckett Candidates for election as county prosecutors have been especially prone to do this, but some candidates for judgeships have done it too. This stands in stark contrast to other developed countries. Nowhere else but in Switzerland are judges or prosecutors elected—they are usually career civil servants—and in Switzerland they act as if they were nonpartisan civil servants.

And in no other country but England and Wales did crime and punishment become major political issues on a continuing basis in elections for legislatures and executive branch positions such as president, governor, or mayor Tonry a , b. A major consequence of these differences is that American judges and prosecutors often take public opinion, or their personal re-election prospects and political self-interest, into account in setting policies or in making decisions about the handling of particular cases. The second major difference, a consequence of the first, is that compared with other developed countries American legislatures have enacted laws of unmatched p.

Twenty-five other states have three-strikes laws. No other Western country has anything comparable.


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Another example are life-without-possibility-of-parole laws LWOPs —most states have them—which mean what they literally say and have been applied to offenders as young as twelve. A few other countries have such laws, usually very narrowly defined, and affecting a handful of prisoners. In , 41, people were serving LWOPs, 7, of them for offenses committed by people who were minors at the time Nellis and King Only a few other countries have such laws, and the sentences they mandate are much shorter than in the United States Tonry The United States is one of a handful of countries that forbid current and many former prisoners to vote; forty-eight of the fifty American states do not allow prisoners to vote, and many deny the vote to all or most former prisoners and to people on parole Manza and Uggen Most other countries—England and Wales is a major exception—set up polling booths within prisons and allow all former prisoners to vote.

While in prison, American inmates are denied Social Security benefits to which they would otherwise be entitled.

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They also are denied access to federal social welfare programs—conspicuously to federal student loan and grant programs that might enable them to obtain job skills or college educations, which would make going straight after release more likely. After release, many states make ex-prisoners ineligible to practice many professions and trades, including such improbable ones as being a hairdresser or a plumber. Many forbid prisoners to live in particular places. This often has the effect in some cases of making it impossible for them to live anywhere in entire towns and cities Wright The third major difference is that American punishments are far harsher than those in other Western countries.

No other country retains capital punishment or regularly uses LWOPs or lengthy mandatory minimum sentence laws.

As a result, p. Rates in Scandinavia vary between 60 and 75 per , residents, rates in most Western European countries e. When all those things are put together, it can be seen that the American criminal justice system is structurally similar to those of other Western countries, but the punishments it imposes are often vastly harsher. A sizable literature has tried to explain why e. Higher crime rates and harsher public attitudes are not the answer; U. The most persuasive answers focus on the politicization of criminal justice policy, the influence of evangelical Protestant moral beliefs, and the history of American race relations nearly half the people in prison and on death row are black, and nearly a quarter are Hispanic Tonry This chapter provides an overview of the American criminal justice system, though not in detail.

Separate chapters in this handbook do that. In , the year after American crime rates peaked and began a steep and continuing decline that continued at least through , 89 percent of Americans believed crime rates were rising and 3 percent believed they were falling. In , 74 percent still believed crime rates were rising and only 15 percent believed they were falling.

In and , roughly the same percentages of people—in the 40 percent range—believed crime was rising as believed it was falling, but the customary imbalance soon reappeared Sourcebook of Criminal Justice Statistics Online, table 2. Why ordinary people so misperceive what is happening is not a mystery.

Although major newspapers run stories at least four times a year—when FBI quarterly reports on crime rates are released—reporting the latest declines, television and films continue to trade in fictional crime stories, and mass media continue p. Ordinary citizens do not read or pay much attention to FBI data or know much about the workings of police or courts, so they generalize from what they do know.

Nonetheless, there is no reasonable doubt that crime rates have long been falling and have fallen a lot Goldberger and Rosenfeld This is shown by police data on reported crimes, by U.

Bureau of the Census data on crimes reported to interviewers by victims, and by medical records on admissions to emergency rooms of hospitals. The same thing is happening in all the major English-speaking countries and in most or all Western European countries—as shown by their police, victimization, and medical data systems. This section briefly discusses American police and victimization data, reports findings from the International Crime Survey, an international survey carried out in most developed and many less-developed countries, and discusses the reasons that have been offered to explain the near ubiquitous declines.

Figure 1. Violent Crime Rates per , Resident Population, — Murder rates per , have been multiplied by ten. Incidents of rape per , have been multiplied by two. Source: Sourcebook of Criminal Justice Statistics , table 3. Property Crime Rates per , Resident Population, — Some of the early increases are attributable to increased professionalization of police records-keeping, increased availability of computerized data systems, and increased reporting of crimes to the police by citizens.

For rape and aggravated assault, for example, reduced tolerance of sexual offending and domestic violence caused substantial increases in citizen reports during the s and s. Some crime rates have been affected by improved crime prevention technologies e. Nonetheless, it is clear that crime rates increased greatly through and again in the late s, but have fallen substantially since.

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This is best shown by the changes in the murder rate. Dead bodies provide incontrovertible evidence, which is collected by both police and health authorities. Department of Justice. Members of 40,—60, U. The victimization patterns documented before are somewhat different from those shown by police data in the s and s; they generally showed declines in victimization in the s, which continued.


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Figures 1. Major modifications of the NCVS in make the data from earlier periods not fully comparable to the data beginning in The victimization data strongly confirm the pattern of steep declines in crime rates shown for official police data in figures 1. The difference in patterns shown by police and victimization data before occurs partly because the victim surveys identify many more criminal events than are reported to the police.

The NCVS asks whether crimes are reported, and for many offenses fewer than half are, usually because the crime was not very serious, because it was not completed, because it was committed by a family member or a friend, or because the victim believed the police would or could do nothing about it.

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However, the rates at which victims said they reported crimes to the police increased during the s and s, which is one reason why police data showed increases at a time when victimization rates declined. It is also possible, and not implausible, that crime rates overall were falling in the s and late s even though rates for the most serious crimes reported to the police and we know that overall more were reported were increasing.

In the late s, for example, many p. They confirm that crimes rates have long been falling, and have fallen substantially. Percentages of State and Federal Prisoners, by Race, — Until the late s, race was broken down by BJS into three categories: white, black, and other.

To various statistics, thus complicating linear representations of the data. We have adopted the approach taken in Tonry In and , BJS reported data with and without a separate Hispanic category. Approximately one-fourth of Hispanics were counted as black in those years. The same patterns exist in many countries. Canadian crime patterns and trends have closely followed U. So have those of England and Wales Newburn , figs. The ICVS has been carried out approximately every five years since and asks representative p.

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Table 1. The percentage of U. For other countries the peak years are later, but all show declines since the early or mids, and in most cases the declines closely parallel declines in the individual countries shown by other sources of data. No one has a good explanation for the declines in crime rates in many countries.

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