Humanizing the Criminal Justice System

Introduction

     There are three topics open to critical analysis in Schmalleger & Smykla’s (2008) book, Corrections in the 21st Century.  Chapter 3 asks the reader to deeply consider whether the criminal justice system should merely punish, punish and reform, or only reform individuals that have perpetrated crimes.  Chapter 7 is connected to this question.  It asks of the reader to critically analyze the reason behind prison sentences.  The reader is compelled to dwell on the following question: Are prisons meant to reform people or simply dump all those that are considered criminals in one place?  Likewise, Chapter 16 is a question that is open to in-depth analysis.  It questions the logic behind juvenile corrections, getting the reader to suppose that there is something terribly wrong with the juvenile corrections system as it stands (Schmalleger & Smykla).

     In fact, all three of the above mentioned chapters call for changes to the traditional criminal justice system.  What kinds of changes do they call for?  This research paper is an answer to the question.  Seeing that the traditional criminal justice system is undoubtedly questionable according to Schmalleger & Smykla as well as many other experts, this paper calls for changes to the system.  To be precise, it asks for the humanization of the criminal justice system prevalent in the United States and many other parts of the world in the twenty-first century.  This can be achieved by adopting alternatives to the traditional justice system.

Adopting Humane Alternatives to the Traditional Criminal Justice System

     A popular theory in management sciences, the Contingency Theory, simply states: ‘It depends!’  Each and every individual exhibiting criminal behavior cannot be jailed, just as each and every victim of abuse does not wish for all perpetrators to be tortured with imprisonment.  After all, even children may exhibit behaviors that appear uncivilized, if not criminal; for example, an unruly child in school may smash his or her friend’s head with a football.  Still, a child is a child – at the lower end of the learning curve.  This is the reason why alternatives to the traditional criminal justice system, such as shaming, peacemaking strategies and restorative justice are especially recommended for juvenile delinquents (Sherman & Strang, 1997a).  As a matter of fact, research has shown that young offenders are most likely to change their problem behaviors through restorative justice techniques rather than court proceedings (Sherman & Strang, 1997a).  Adult drink drivers, too, are very likely to change their behavior because of the humaneness of restorative justice (Sherman & Strang, 1997a).  Of course, the same has not been said for serial killers or rapists.  After all, there was a reason for the Biblical rule: ‘Eye for an eye, tooth for tooth.’  Just as all types of crimes cannot go unpunished, all types of criminals do not require the harshness of the traditional justice system, defined by the terminology of “punishment, zero tolerance, criminal personality (Wormer, 2002).”

     The United States jails more individuals than any other place in the world, “perhaps half a million more than Communist China (Kemp, 2000).”  It is not surprising, therefore, that U.S. prisons are overcrowded.  Yet, the victims do not only desire for the perpetrators of crimes to be punished but also shamed so as to keep them from criminal activities in future.  Shaming, peacemaking strategies, and restorative justice also carry elements of punishment.  These alternatives to the traditional criminal justice system allow the perpetrator of a crime to be known to all concerned.  However, these alternatives to the traditional justice system are less harsh.  What if the person who is said to have committed the crime is innocent?  If a blamed person is truly innocent, the traditional criminal justice system that punishes him or her is a sham at best.  On the contrary, alternatives to the traditional justice system, e.g. shaming, peacemaking strategies and restorative justice, are more apt to allow for the truth to be known.  The humaneness of these alternatives to the traditional criminal justice system may be explained with the following example provided by the Australian Institute of Criminology:

         As American judges move steadily towards greater humiliation and stigma as punishments

    for convicted offenders, the Australian Federal Police in Canberra are showing that shame

    does not require humiliation. In hundreds of drink driving and young offender cases over the

    past two years, the AFP have adopted alternative restorative justice techniques recommended

    by ANU Professor John Braithwaite.

         Professor Braithwaite has defined two different kinds of shame. One kind is stigmatic

    shaming, which disintegrates the moral bonds between the offender and the community. The

    other is reintegrative shaming, which strengthens the moral bonds between the offender and

    the community.

         Stigmatic shaming is what American judges employ when they make an offender post a

    sign on his property saying “a violent felon lives here”, or a bumper sticker on his car saying

    “I am a drunk driver”. Stigmatic shaming is designed to set the offender apart as an outcast for

    the rest of the offender’s life. By labelling him or her as someone who cannot be trusted to

    obey the law, stigmatic shaming says the offender is expected to commit more crimes.

         Professor Braithwaite’s alternative to stigmatic humiliation is to condemn the crime, not the

    criminal. It gives offenders the opportunity to re-join their community as law-abiding citizens.

    In order to earn that right to a fresh start, offenders must express remorse for their past

    conduct, apologise to any victims and repair the harm caused by the crime.

         Canberra police have adopted Professor Braithwaite’s principles by diverting confessed

    offenders from court to a more intense, personal (and lengthy) alternative known as

    Diversionary Conferencing. In these conferences, which are convened by a police officer,

    offenders, their family and friends, and their victims or a community representative all

    actively participate. Conferences focus on the crime rather than the criminal, drawing out the

    bad consequences of the crime and planning how best to make up for them. If the offender

    agrees to the group’s proposals for restoration, the police then monitor the offender’s

    compliance in carrying out that plan. If offenders do not keep their promises, then these cases

    can be referred for prosecution, but nothing said during the conference can be used in a court

    (Sherman ; Strang, 1997b).

     Then again, the use of alternatives to the traditional criminal justice system depends on the extent of justice required by the victim and the seriousness of the crime.  Unfortunately, the traditional criminal justice system often turns a blind eye to itself when it punishes innocent people, when intentions are misjudged, and innocent people are stigmatized as criminals for the rest of their lives.  There are countless instances of such crimes perpetrated by the traditional criminal justice system, which is the very reason why alternatives to the traditional system must be thoroughly researched and applied when needed.  Seeing that law enforcement personel, lawyers and judges, too, may misjudge people or hold them for crimes that they are not responsible for – considering the traditional criminal justice system as a hard and fast rule appears as a crime in itself.  What is more, at times when the traditional criminal justice system fails to deliver, it makes a mockery of justice.

     There are other loopholes in the traditional criminal justice system as well.  Numberless severely mentally disturbed people, also known as psychopaths, insist on repeating their crimes.  Psychologists offer defense on the behalf of such individuals.  It is still debatable whether insanity is an acceptable defense.  If a psychopath constantly harasses an individual, the victim may naturally want the mentally ill person to be punished, if not held behind bars in a mental hospital.  Peacemaking strategies, such as getting a “respected community leader” to arbitrate or mediate disputes, resolve family troubles, and correct behavior by allowing the criminal to perform community service may not work in such cases (Neilson, 1999, 108).  Then again, even the traditional criminal justice system does not serve its purpose in all cases.

     It is, therefore, best to consider a mix and match of various crime deterrence techniques.  Reference to ‘crime deterrence’ is naturally consonant with Schmalleger ; Smykla’s reference to ‘reform’ through the criminal justice system.  Unless a young offender is severely mentally ill, alternatives to the traditional criminal justice system, such as shaming, peacemaking strategies and restorative justice, are expected to work best.  Unless it is a rape, robbery or murder case, alternatives to the traditional system must also work best on adult offenders that have never received a legal notice in their lives.  All that the victim desires is justice.  He or she does not want the crime to be repeated in his or her life.  As Sherman ; Strang (1997b) have maintained, if the perpetrator of a crime agrees not to repeat the offence, and manages to keep his or her word, it is perfectly correct to allow the individual to change his or her behavior by realizing his or her folly.  If supervisors of the alternatives to the traditional system discover that the offender is unwilling to repent or suffering from psychopathy, however, the traditional system of jailing or sending the criminal to a mental asylum is preferable.  In any case, the chosen method of crime prevention should be humane.  When humaneness becomes a forgotten fact, even law enforcement personnel, lawyers and judges may be held responsible for the perpetration of crime.  After all, by labeling innocent individuals as criminals, crime preventers are only destroying lives.  So therefore, it is best to deal with every case as an individual case with its own facts and dilemmas.  Victims, too, are human beings that may or may not correctly spot the perpetrators of crime.

     This is the reason why social workers are firm believers in alternatives to the traditional criminal justice system (Wormer).  “Victim-offender mediation” is considered highly desirable, but only when the victim agrees to it (Wormer).  If the victim does not agree to such mediation, he or she has the right to demand the traditional criminal justice system to prevail.  It may be that the victim would instead demand to have nothing to do with the offender in the present and in future.  Since the justice system is designed with the victim’s best interests at heart, it is the victim whose wishes must be respected.  The victim also has the right to forgive the offender.  However, in serious cases, such as murder, the traditional criminal justice system may demand its own rights, which in this case are synonymous with the rights of society as a whole.

Conclusion

     The Contingency Theory should play a central role in the justice system.  Every case brought before law enforcement personnel is unique, and must be treated thus.  If everybody is treated as an equal, the criminal justice system would make a mockery of itself playing the game of three blind mice – the ones given the task of meting out justice, the offenders, and the victims.  Sane people do not want to be shamed or punished, and if they have mistakenly offended others, are usually prepared to mend their ways especially when humane mediators are involved in the case.  Human beings have a natural affinity with each other.  Almost everybody in the world shrieks in terror at crimes perpetrated against humanity.  Therefore, it is most reasonable to consider the traditional criminal justice system alongside alternatives to the system.  More correctly, it is necessary to put together the alternatives with the traditional criminal justice system and use the correct measures based on the facts of each case.  Just as everybody is not dishonest, everyone cannot be expected to have the same level of intelligence or sense of responsibility toward society.

References

Kemp, R. B. (2000, Mar). The U.S. Penal System: Restorative and/or Retributive Justice.

Woodstock Report. Retrieved Nov 28, 2008, from http://woodstock.georgetown.edu/publications/report/r-fea61a.htm.

Neilson, M. O. (1999). Navajo Nation Courts, Peacemaking, and Restorative Justice Issues.

Journal of Legal Pluralism, Vol. 44. Retrieved Nov 28, 2008, from

http://www.jlp.bham.ac.uk/volumes/44/nielsen-art.pdf.

Schmalleger, F., ; Smykla, J. O. (2008). Corrections in the 21st Century. 4th ed. New York: Mc-

Graw-Hill.

Sherman, L. W., ; Strang, H. (1997a, Apr). Restorative Justice and Deterring Crime.

Australian Institute of Criminology. Retrieved Nov 28, 2008, from

http://www.aic.gov.au/rjustice/rise/working/risepap4.html.

———————————–. (1997b, Apr). The right kind of shame for crime prevention.

Australian Institute of Criminology. Retrieved Nov 28, 2008, from http://www.aic.gov.au/rjustice/rise/working/risepap1.html.

Wormer, K. V. (2002, Jan 7). Restorative Justice and Social Work. Social Work Today, Vol. 2,

No. 1. Retrieved Nov 28, 2008, from

http://www.restorativejustice.org/resources/docs/vanwormer/.

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