NCJ Number
46960
Date Published
1977
Length
31 pages
Annotation
SOME OF THE BASIC PROBLEMS WHICH EXIST IN THE CONTEMPORARY AMERICAN CRIMINAL JUSTICE SYSTEM ARE DISCUSSED.
Abstract
ONE OF THE FUNDAMENTAL PROBLEMS, AT LEAST ON AN INTELLECTUAL LEVEL, IN THE CRIMINAL JUSTICE SYSTEM IS THE LACK OF CONSENSUS AMONG VARIOUS ELEMENTS OF THE SYSTEM REGARDING THE MOST APPROPRIATE POLICIES FOR RESPONDING TO CRIMINAL BEHAVIOR. THE CONFUSION IS EVEN GREATER AT THE INSTITUTIONAL LEVEL. SINCE INSTITUTIONS CHANGE ONLY SLOWLY OVER TIME, THEY TEND TO REPRESENT A COMPLEX SET OF EXISTING POLICIES AND REMAINS OF EARLIER POLICIES, SOME OF WHICH MAY HAVE ALREADY BEEN ABANDONED ON THE INTELLECTUAL LEVEL. THE FORMULATION OF CRIMINAL JUSTICE POLICIES HAS BEEN HAMPERED BY AN INABILITY TO CHOOSE AMONG NUMEROUS CONFLICTING GOALS, AND THE SYSTEM HAS BEEN MARKED BY AN INABILITY TO MEET ANY OF THESE GOALS. THE THREE MOST WIDELY ACCEPTED GOALS ARE DETERRENCE, REHABILITATION, AND INCAPACITATION. STATISTICS ARE PRESENTED WHICH ILLUSTRATE THE SYSTEM'S FAILURE TO ACCOMPLISH ANY OF THESE. GROWING DISSATISFACTION WITH THIS PERFORMANCE HAS MADE PEOPLE MORE WILLING TO QUESTION THE FUNDAMENTAL ASSUMPTIONS THAT HAVE GENERALLY GUIDED POLICY FORMATION. THERE IS A RENEWED INTEREST IN TWO CRIMINAL JUSTICE THEORIES WHICH HAVE LONG BEEN IN DISFAVOR -- RETRIBUTION AND RESTITUTION. THIS DEVELOPMENT HAS BEEN REINFORCED BY A NEW CONCERN WITH THE ISSUE OF INDIVIDUAL RIGHTS. HOWEVER, THE CONCERN IS NOT SO MUCH WITH THE CONSTITUTIONAL RIGHTS OF THE CRIMINAL AS WITH THE MORAL RIGHTS OF ALL PARTICIPANTS IN THE CRIMINAL JUSTICE SYSTEM, INCLUDING THE VICTIM. THIS EMPHASIS PRESUPPOSES A DEFINITION OF CRIME AS THE VIOLATION OF THE VICTIM'S RIGHTS, AND IT FOCUSES ON THE RIGHT OF A VICTIM TO DEMAND RECTIFICATION OF THE IMBALANCE CREATED BY THE CRIMINAL ACT. THE MOST IMPORTANT GOAL OF THE CRIMINAL JUSTICE SYSTEM MUST BE THE RECTIFICATION OF EACH INDIVIDUAL WRONG, AND IT MUST TAKE PRECEDENCE OVER ANY 'LARGER' GOAL. THE BASIC PRINCIPLES OF THIS RESTITUTIONARY THEORY OF JUSTICE ARE SUMMARIZED. THEY INCLUDE THE PRINCIPLES THAT: THERE ARE TWO PARTIES TO ANY CRIMINAL ACTION, THE VICTIM AND THE DEFENDANT, NOT THE STATE; THE CRIMINAL ACT CREATES AN IMBALANCE BETWEEN THE PARTIES THAT REQUIRES RECTIFICATION; IT IS UP TO THE VICTIM TO INSIST UPON THE PUNISHMENT OF THE CRIMINAL OR TO PARDON, AS IT IS THE VICTIM'S RIGHTS WHICH HAVE BEEN VIOLATED; ALL INDIVIDUALS POSSESS RIGHTS, THE ACCUSED AS WELL AS THE VICTIM; AND ANY NEUTRAL THIRD PARTY MEDIATING A DISPUTE MUST ESTABLISH A STANDARD OF PROOF BEFORE IT ACTS TO ENFORCE A VICTIM'S CLAIM AGAINST A PARTICULAR ACCUSED INDIVIDUAL. (VDA)