1st Principles: Criminal Justice
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Transcript of 1st Principles: Criminal Justice
www.monashdebaters.com | [email protected]
Topics:
• That we should elect our judges• That we should bring back the death penalty
• That we should have mandatory sentencing for repeat offenders
• That we should abolish trial by Jury• That paedophiles should be forced to wear tracking devices
• That we support at-home detention for juvenile offenders
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The CJS
\taskgroup\
Define Crime
Investigation
Ascertain Guilt
Sentence
Legislature
Decide what is a crime by making law
- - Sets parameters within which judges can decide
Police - Identify potential breaches of the law
-
Judiciary
Sometimes interprets the law when it is not clear
- Determines if a breach of the law occurred
Decide on appropriate application of penalty range
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AIMS of the CJS
•Punishment / Retribution – of the criminal / for society & the victims
•Protection of Society – From repeat offences
•Deterrence– Of similar acts
•Rehabilitation– Of the criminal
PROPORTIONALITY
•A useful concept for examining these with reference to other legislation
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Balancing the Aims (2)
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Balancing the Aims (3)
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Balancing the Aims (4)
• What about the Dealth Penalty?
• Reality of Deterrence is that it is limited– Rationality– Incrementally Different
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Balancing the Aims (4)
• Most debates about Criminal Justice are about balancing these aims.
• This means– showing the impact of the policy on each of the aims AND
– Explaining which particular aims are more important in this case and WHY.
• Eg: “That convicted paedophiles should be forced to wear tracking devices for the rest of their lives”
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GOING TOUGH ON CRIME
• This section is about how to take the Punishment/Retribution and Protection side first and foremost.
• Two things need to be done:– Show why punishment is necessary
– Show why punishment is proportional and appropriate
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The Rights of Criminals
• Criminals lose rights– Presion: Freedom of association, of speech, of movement, of voting (in some countries)
• Though no one loses all– Right of appeal, to a fair trial, adequate representation, freedom from torture
• How justify taking away? • Note: Once taken away, very few people out there advocate bringing them back!
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Concept: The Social
Contract• Where do rights come from?• Social Contract Theory:
– Rights are a construct of a contract
– We give up rights to do whatever we want
– In exchange for protection from people doing whatever they want to us
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Harsh Punishment:
Proportionality• Devastating Impact on Individual
Victims – Rape, Murder, Paedophiles
• How deal with offences such as Drug Trafficking, Property Crime, where impact on individuals may be lesser?
• Answer: Devastating Impact on Society• eg: “That we should have the death penalty for drug traffickers”
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Harsh Punishment: Neccessity
• Establish a problem that needs fixing
• Issue: Crime rates are falling in most developed countries
• Answer? Lie? NO!• PUBLIC PERCEPTION
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Public Perception
1. Feeling unsafe inhibits ability to excise rights
2. When justice appears inadequate people take justice into their own hands - Vigilantes
3. Concentrates crime due to demographic change (Sometimes)
- Broken Windows Theorye.g. New York
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GOING SOFT
• How to focus on Rehabilitation
• Why matters?
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Combating Perceptions
1. Numbers: Crime Rates are falling across Australia and most parts of the developing world
2. Soft: Prison population is rising and for some crimes incarceration rate is increasing. And not getting off lightly either - 96% of Murderers, average >18 years in jail
3. Judges out of Touch: When people know the full facts of the case, are often more lenient than judges - Melbourne Uni Study
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Rehabilitation reduces
Crime!• It works - example: Victoria• It reduces suffering associated with future crimes
• Saves government extremely high costs of incarceration (people in prison)
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We need Rehab to work!
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Where does Rehab Work
Best?• How does Rehab work?
– Changing Mindset
• Where does this work best?– Prison programs– Diversionary Centres– Community Outreach
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Factoid: SENTENCING
• Our system preserves significant judicial discretion in sentencing
• Safeguard• To meet aims of justice system, each person needs to be dealt with differently
• “Tough on crime, but also tough on the causes of crime.”
• Factoid-within-a-Factoid: Victim Impact Statements?
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Factoid: LAWYERS
• The Australian legal system is ‘ADVERSARIAL’
• This means that judges and juries can only decide on what is presented to them in the court.
• Thus, Lawyers are crucial• There is such a thing as a good lawyer and bad lawyer -> what does this say about our Justice system?
• Alternative: INQUISITORY
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Factoid: JURIES
• Most serious felonies are tried by Jury• Panel of 12 “Average Reasonable People” called to serve
• Panels are vetted by lawyers• Role of Judges:
– direct juries on matters of law and inadmissable evidence.
– Set the sentence
• Why do we have Juries?• Are juries an accurate reflection of society?
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Factoid: LEGALISING vs DECRIMINALIZIN
G• LEGALISING
– Totally acceptable– No related offences– Benefits: Frameworks, government standards
• DECRIMINALISING– There’s not really a legal process– BUT, focus on the ‘actual’ criminals– Benefits: Keeps it illegal, but doesn’t stomp on the pawns
• Example “That we should decriminalise the act of prostitution”
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Factoid: PRISONS
• Are prisons effective at Rehabilitating people?– Isolation from Society– Bad Influences
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Factoid: YOUNG PEOPLE
• Minors are treated differently by the law– <10, cannot be criminally liable– 10-14 in between– 14 - 18 can be held criminally liable
• Emphasis on Diversion• Concept: Labelling• Juvenile Detention as Last Resort
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Factoid: VOTING
• In Australia:– You cannot vote while in Prison– However, you can vote if you are a convicted criminal, just not in prison, or have been released
– Thus, whether you lose the right to vote or not is up to random chance for shorter gaol sentences.
• In America– ?
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Factoid: POLICING
• Significant operational discretion is utilised
• Why? • Harms of Discretion• Zero Tolerance
• Community Policing
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Factoid: HOW DO SOCIETIES
DECIDE WHAT IS A CRIME
• What constitutes a crime is a relative concept
• Between societies– There are some common crimes– There are some different crimes
• And some change with time• CLASH is UNIVERSAL RIGHTS vs MORAL RELATIVISM