September 25 2012
Week 3 Lecture
Preliminary points for criminal law system;
Definitions of crime: legal
What are purposes and goals? – they ‘re not set in stone
PROBLEM we really don’t have workable goals in the CJS
1) CJS is not a constant
a. Is the family working well
b. Is technology working well
2) Its an unknown system
a) It’s in latin terms
b) On what grounds are decisions made (law on voyarism)
c) How do they make their decisions (why are some people charged, some are diverted)
3) Different levels of enforcement enforcing different laws
The component parts;
- Often one part of the system doesn’t know what the other parts are doing
-Problem in terms of calling it a system; because courts, judges, police enforce different laws
differently (not uniform)
Holistic courts: Drug courts, D.V
-specialized councilors (looking at housing issues, psychological issues)
-integrating everyone’s perspective to get a more holistic approach on a problem
-More reactive then criminal law; help the person integrate well back into society, not just send to jail
and make a criminal
POLES- 91% of Canadians describe their knowledge of the CJS as poor
CJS: NOT A COHERENT SYSTEM, AN UNPRINCIPLED SYSTEM
- No unifying goals or purposes in the CJS- Not even listed purposes to what we want to
accomplish with the C.C
- No overall principle which ties components; police, judges, prosecutors together towards one
- No principles within the components; police and judge discretion within their fields- no
Can we really call it a system when we have no goals or principles to work towards?????
-Charter?- Not really a list of goals, just of rights
What do we want to accomplish in the content of criminal law? In terms of substantive law? In
terms of the processes we have? Formal processes: - its adversarial confrontational
- Its language
Informal processes:- diversion programs (diverting from trial) } outcomes are different for all
- Mediation schemes
- Social mechanisms
MAIN criticism of cjs: Too formal, takes the conflict away from the victim and gives it to the state
- THINK BACK Nils Christie
- Attraction to formal side of law can create unsatisfaction in the system when victims justice isn’t
Are their practicial goals that we could add to help clarify?
Without goals are we restrained??????
How do we have a workable set of unifying principles?????
MITCHELL: How do we define crime?????
- In legal definitions no mention of what ought to be the law?
- Why is pretending to be a witch a crime and nose picking isn’t?
The influence of the profession: How do you process people through the system?
How does their expertise help in court?
Argument: They focus on procedural aspects- law making (How do you process someone through the
Lawyers- natural procedural position- low expertise in society, economics and social welfare ( sort of
expertise we need when trying to reform the law)
Training/ education of expertise: Taught from basic level to be procedural
- Disputes solved through negotiation (plea bargaining)- most cases solved through this
- Informal resolution of disputes in cjs is a problem- most people don’t want to carry their cases
through court anymore- turn to mediation, negotiation ( get stamp of law)
- PROBLEM: SAME PEOPLE PROCESSED OFTEN
- Legal professionals focus on law as a solution
- Legal fetishism
- Problem with substantive issues that occur- problem automatically becomes defined as a legal
issue rather than looking at resolving it in other ways
Law reform Commission: Supposed to have psychologists, judges, lawyers, citizens
- Ended up just being lawyers
- Talks about substantive issues: homicide (and frame them essentially, as a legal problem)
- Problems they come up with to reform the issue are technical (meaning of a word in latin-
should it really be called homicide?)
NOTE: If we were to define the problem differently, we could define the solution differently
- A medical treatment view on problems (potentially) - Law has gotten harsher because of the influence of legal professionals on the making of the law
Bias in professionalism: -maleness of the legal profession (sexual assault cases)
- Whiteness of legal profession (changing)
Criminal trial seen as central to criminal law: -Not actually used that often
- More plea bargains
What is a crime???
How do we define a crime?
Mitchell- ch 1- Different perspectives of Legal definitions
- Mitchell- talks about different ways to define crime
- Legal definition: 2 things
1) They are very broad (there are no limits within it)
2) They are also very narrow (If the law says it’s a crime, it’s a crime)- Whats missing? The
notion of what “ought” to be there
- However there are other definitions
Ethical definitions: Ways to identify wrongs which should be put in the criminal code
- Meanings of wrongfulness