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General Education Studies
Asher Flynn

Crime, Law & Justice – An Introduction W1 What is criminology - Engages with crime. - Controversial. - Complex. - Field of enquiry. - Body of knowledge. - Interdisciplinary. - Looks beyond stereotypes. - Challenges misconceptions. - Crime resists simple solutions. Key criminological concerns 1. What is crime? - Differs greatly from society to society. - Legal definition: Acts prohibited by law. - Social harm definition: Acts that cause harm, even if they are not prohibited by law. - Human rights definition: Acts that violate human rights and other universal laws. - E.g. Homosexuality (de-criminalised in the70s and 80s); rape in marriage (criminalised in the mid 80s). 2. Process of criminalisation: - Process by which certain acts become labelled as crimes or certain actors become labelled criminal. - Linked to social and power inequalities (who makes the law, shapes perceptions and how does representation matter). - E.g. Asylum seekers – described as illegal, criminal; views might change if shown a different representation. 3. Explaining and understanding crime and criminality: - Do people make a rational choice to commit crime? - Can we tell a criminal by the way they look or the size of their skull? - Are criminals born or bred? - Is criminality shaped by social or economic status? - Assumptions: o All people are born good. o All people are born bad. o All people are born both good and bad. o Some people are born bad. o Men and women are fundamentally the same. o Men and women are fundamentally different. o Men and women are more similar than different. o Men and women are more different than similar. - Our experiences and observations can sometimes contradict what we initially think. - Theories will constantly develop and change. 4. Examining and evaluating the CJS. - Police. - Courts. - Corrections. 5. Proposing reforms. - Better life skills courses in prison. - Infinite detention of no rehabilitation. - E.g. lie detectors for sex offenders post release – more honest in reporting devious thoughts and actions, better self-management of behaviour, better self-rehabilitation. 6. The broader context of crime and criminalisation. - Cultural context – the role of the media and the culture in which the crime occurs. - Political context – crime as a political issue. - Societal context – understandings and misunderstandings about crime. Applying drug use to concerns 1. Is drug use a legal or health issue? Should it be criminalised? 2. How do laws against drug use lead to some people being criminalised more than others? What does this demonstrate about power inequalities? 3. Why do people use drugs? Can we address it with a criminal response or criminological theory? Is it linked to criminality, or is criminality linked to drug use? 4. Do current responses address the harms caused by drug use, or do those themselves cause harm? Is prison the answer for drug users? 5. Different ways of thinking about/responding to drug use? Could they be more effective? Should we have needle exchanges in prison? 6. Where does it fit within social, political and cultural contexts? 7. How does the context shape the process of criminalisation. Crime and the criminal law - Who is deemed a criminal/victim is contingent upon how the state intervenes. - Criminal law – identifies those behaviours deemed by lawmakers to be deserving of punishment and control. - Purposes of criminal law: o Moral wrongness:  Morality seen as underpinning the social fabric of society. Criminal law is a vital instrument in deterring ‗immoral‘ behaviour.  Point of intervention is to uphold certain morals.  Tendency to expand laws relating to moral issues, to enact harsher penalties in order to enforce the legal and moral code, and for concerns about order and conformity to take priority over concerns about justice. o Individual autonomy:  And freedom are the most important social values.  Criminal law should only be used against behaviour that injures the rights and interests of other people. o Community welfare: - Conduct elements of a crime – conduct that caused the crime (voluntary). - Reasons why crimes take place determines what is perceived to be the best way of responding to it. - Perspectives on crime: o Mainstream – generally accepts narrowly defined administrative definitions of crime and social harm at face value and engages in public debate and formation of public policy within conventional understandings of the problem and what to do about it. o Alternative/critical – critique of existing definition, examines how CJ institutions themselves influence the criminalisation process and challenges conventional thinking in the light of concerns about human rights and social justice.  Community interests are the most important social values to the extent that individual autonomy may be sacrificed for the greater good of the community.  Principal purpose of criminal law is to protect the physical wellbeing of members of a community.  Key indicator of which behaviours should be criminalised/decriminalised. The criminalisation process - Someone reports an event, or police see someone doing something they shouldn‘t. - Police officer intervenes, telling them to go home or move along. - Depending on the nature of the behaviour, and attitude and cooperation by the young person, they might decide to issue a formal caution (taking them to the police station). - May decide to charge them. - If it is serious, they have to apply for bail. - If bail isn‘t granted then they have to stay in custody until the court date. - Court or community work is decided. - If found guilty, judge assigns sanctions. Measuring crime - Complicated by social, technical and political factors. o Intertwine to define crime and how it is responded to by CJ institutions. o Social factors affecting production of crime statistics:  Under-reporting.  More police officers, resulting in more offences.  Over-representation of working class crime and under- representation of corporate crime. The Politicisation of Law & Order W2 What the ‘real’ issue is - Are we suffering from a ‗crisis in law and order‘ or a crisis of perspective. o Crime rate increases? o More dangerous crimes? o Is there a need for more police? o Is there a need for tougher sentencing? o Have our perspectives been shaped to believe this? Hogg and Brown - Crime is sensationalised and misinterpreted. - Crime is removed from its social context. - Fear and social division are promoted. - Punitive strategies are too readily relied upon. - E.g. ―rape sentences in Victoria too lenient‖. - Allow us to justify the punitive strategies because media makes us see them as a criminal and that they deserve it. - Punitive strategies are a quick fix. - Crime wasn‘t a prominent concern until 1989. - This adoption of law and order came from the 1964 US election. o Barry Goldwater – US Senator – Republican party candidate. o Conservative in the campaign. o Introduced the ‗law and order‘ slogan:  Crime is a serious problem. o Tougher stance required at all levels.  More police.  Sentencing.  Tougher laws. o Crime at the forefront of concern – lost election but the agenda was taken on by Western countries anyway. o Product of civil dissent – led to crime. o Civil war (to all be equal) against government saw a shift towards controlling people in society and maintaining social order. Law and order today - Become part of everyday politics. - Key feature of campaigns. - Fused with federal and international politics. o Status of asylum seekers and refugees. o Illegal immigration. o Terrorism. - At state level: o Increases in police powers. o Strengthening and broadening of laws. o Harsher sentencing. Law and order common sense assumptions (Hogg and Brown) - Contribute to this crisis of perspective that they believe exists in relation to crime and understandings of crime and how to deal with it. - Assumptions that help advance a law and order agenda and help shape our perceptions around what the best way to respond to crime is. - Prey on people‘s insecurities and fear of crime. 1. Soaring crime rates. - Serious crime problems – the idea that we are being inflicted with unprecedented crimes at a serious level. o Reported in opinion polls and surveys, feature articles or editorials. - Journalists refer to the crime clock – e.g. a robbery occurs every 1.2 minutes. - The uniformity of assumptions and language use make it very difficult to challenge the claims in anyway without appearing to be downplaying the seriousness of the crime situation. - Even though crime rates appear to be decreasing, a negative flag can still be waved to help keep the concern that crime is soaring. - E.g. ―crime rates soar but assaults continue to rise‖. 2. Law and order nostalgia. - ―worse than ever‘. - Idea that crime is at an unprecedented level in society. - We‘ve never experienced anything like it before so we need new, effective, punitive ways to deal with crime. - E.g. ―there is a new climate of violence in Australia, the kind not experienced by earlier generations‖. 3. The shape of things to come. - Comparing Australia with others that have similar ideals and values but where there is a perception that there is a really significant amount of crime. o Particularly UK and America. o Often placed in the context of gang related violence due to their association in US culture. - Twist with this approach – we look at what punitive strategies have been used in these place and how they‘ve been seen to effectively solve the crime problem e.g. push towards zero tolerance in policing. 4. The CJS does not protect citizens. - Soft on offenders. - Associated with prisoners – luxury in prisons. - Effects our understanding of prisons and shapes our perceptions. 5. We need more police with greater powers. - Idea that we need more police on the streets and for them to have greater powers. - Problem – very little discussion about police priorities and how it will actually contribute to solving the crime problem, need to add the resources as well. - Simple, quick fix response to crime. 6. We need tougher penalties. - Courts need to impose tougher penalties. - Government setting tougher penalties as well: o Fewer people given bail. o Fewer parole options. o Longer sentences. o Abolish suspended sentences. 7. Victims should be able to get revenge through the courts. - Welfare and ability to get justice for victims relies solely upon the punitiveness (harshness) of the CJS. - Isn‘t going to be a sentence that accurately reflects the offence e.g. how does imprisonment measure to the murder of someone. - Polarisation between victims and offenders. - All victims want revenge in punitive measures, but because of their status they become a powerful tool that are used in law and order politics. Additional common sense elements - People who break the law are ‗different‘. o We have a need to exclude them from society and explain their criminality and deviance. o We label them as the ‗other‘ and it justifies a tough response. - Some people/groups are more likely to break the law than others. o Ethnicity, race, religion, age and socio-economic status. o Certain groups ‗criminal‘ because of who they are or what they look like. o Justifies increased targeting and tough response. - Breaking the law is an act of individual choice, inclination or disposition. o Justifies punitiveness. o People make rational choices to commit crime. o It is part of who they are. o Legitimises tough, law and order style responses because it‘s their fault, their decision to become a criminal. Hierarchy of credibility - Some people and their views tend to be viewed and prioritised and more valid than other peoples. - Primary definers – police, politicians, experts. - Knowledge is considered to be objective, truthful, and important. - Set the parameters of debates around law and order o Identify problems. o Compile evidence. o Offer explanations. o Offer possible strategies. - But: o Their views are not necessarily impartial or complete. o Can reflect individual and organisational priorities and contexts. Common sense - Calls for a new way of responding to juvenile offenders. - Over past 30 years we‘ve seen political, administrative and economic factors combine to push their law and order approach to crime. - So much so that it has become common sense – the way to respond to crime is through punitive strategies. - Any attempts to downplay or deny this can be seen as political suicide. Results of law and order - Increase in number of laws. - More severe laws. - More police – more powers, greater resources. - Harsher sentences. - Removal of judicial discretion. - Rapid increases in prison populations. Critiquing law and order - No ‗quick fix‘. - Can create more problems e.g. costs of having to house more prisoners. - Easier to focus on commonsense elements than actually looking at the underlying cause of criminal behaviour. - Quick fix solution has done little to effect deterrence and occurrence and little impact of punishing them. - Media can still highlight crime rate, even when official statistics say the rate is down. - Many difficulties in measuring crime. - Often based on short-term variations in crime. - Statistics can be exploited. - False consensus: assumes or implies that a consensus exists. - Ignores differences in perceptions. Examples: o Drug use. o Prostitution. o Prison. o Death Penalty. - Differences between people = problematic. - Certain groups vulnerable to increased surveillance and social exclusion. - Strong economic and social cost consequences. - Increases in cases; police resourcing costs. - Increases in prison costs. - Diversion of money away from health, education, welfare and legal services. - Ignores the ‗social‘ aspect of crime - Fails to consider factors that inform crime: - Education - Health - Socio-economic state - Other strategies ignored - Promotes and exploit fear - Cycle of fear and punitiveness (tough measures) – we‘re afraid of more crime and that leads us to want more punitive responses and we‘re stuck in a vicious cycle of law and order. Blood, Violence & Fear: Making Crime Newsworthy W3 Agenda setting. The way in which those who work within the media decide what is important enough to report. Audience. The assumed group at whom media texts are aimed. Binary oppositions. Notion that the media presents the world through polarised constructions of difference which are fixed and immutable e.g. man/woman. Citizen journalism. Form of demographic participation brought about by mass ownership of phones with cameras, image sharing sites and popularity of blogs. Ethnocentrism. When a country‘s news organisations value their own notion over others. Framing. The shared cultural narratives and myths that a news story conveys via recourse to vital imagery, stereotyping and other journalistic shortcuts. Ideology. Refers to the ideas that circulate in society and how they represent/misrepresent the social world. Moral majority. Encapsulates the imagined community to which the popular press address themselves. Newsworthiness. Encapsulates the perceived public appeal/interest of any potential news story (determined by news values). News values (12). Professional, yet informal codes used in the selection, construction and presentation of news stories. Populism/populist punitiveness. Perception that the public demands more punitive justice and punishment strategies to deter would-be offenders from committing crime. Public appeal. Measured in sales figures and ratings. Public interest. Qualitative assessments of what public should/shouldn‘t be made aware of. Social constructionism. Emphasises importance of social expectations in the analysis of taken-for- granted and apparently natural social processes. Avoids the conventional binary opposition of representation/reality by suggesting that there is no intrinsic meaning in things, but that meaning is conferred according to shared cultural references and experiences. Representation  Portray/depict something.  Representations of crimes come in different forms: o Visual e.g. movies, TV shows, nightly news. o Written texts e.g. articles, books. o Verbal communication e.g. friend telling you, politician making a speech. o Statistics/numbers. Importance of media  Allow us to access and give meaning to crime. o Provide us with knowledge, understanding and meaning. o What‘s happened. o Who is involved. o Responses of the CJS. o Gain knowledge without direct involvement. o Help us understand and make sense of crime. o Accord some meaning to why crime happens.  Provides a story around the facts e.g. a woman with 3 kids is killed.  Provide a context.  Helps us gain a perception of what‘s occurring and how to respond.  Media‘s role in representing reality is highly contested and subject to interpretation. Constructing the ‘truth’  Media representations of crime are productive.  Actively construct the ‗reality‘/‘truth‘ of crime.  Do not simply reflect the ‗reality‘ of crime – they offer their account. o E.g. Underbelly – Gang A depicted committing a murder (constructed reality); Gang B tried for the murder (actual reality). ‘Reality’ & ‘meaning’ constructed  Meaning or significance is a product of social processes.  By representing crime we decide what a certain crime means.  Crime occurring = the fact.  Factors that shape news production: o Meditated picture of ‗reality‘ is shaped by the production processes of news organisations and the structural determinants of news making, any or all of which may influence the image of crime, criminals and the CJS in the minds of the public. o Media makes assumptions about their audience.  Select news items and prioritise some news stories over others (agenda-setting).  Edit words, adopt a particular tone and decide on visual images (framing).  Meaning of the crime = debated and constructed by representations. o Media plays significant role in construction. o The way crimes are presented through the media is to shape the meaning of the crime as well as others. o They actively produce a reality around crime. o How we conceptualise and view crime is shaped by the media.  Represensttion example – 9/11: o 1 pndception – plane crash. o 2 perception – US under attack. o 3 perception – ‗great crime‘; ‗crime against humanity‘. o 4 perception – ‗act of war‘; ‗act of terrorism‘. o It is through the representation of these attacks as an ‗act of war‘ that they have come to be understood in the way that they have  Representation example – Redfern Riots: o Events occurred in response to the deaths of Indigenous Australians arguably due to police negligence. o Use of term ‗riots‘ shifts the focus from ‗act of political resistance‘ to ‗Indigenous Australians misbehaving. o Depicted to us as a riot, drunk people lashing out at police. The nature of media representations  Ideal – free from political influence, objective account.  Not completely comprehensive or objective.  Adopt a partial, selective and particular approach (they decide the parts they‘re going to report).  Trying to sell to us by reporting what they think we want to see the most. What makes news newsworthy  Unexpectedness: o New, sudden or rare. E.g. 9/11. o Draws a lot of news attention, shocks/inspires confusion.  Unambiguous: o Simple, easy to follow, somewhat routine. o General court reporting. o E.g. drunk driving with a twist – father 3X BAC.  Meaningful: o Relevance to people‘s lives. o Sense of proximity. o E.g. death of Australians overseas; Victorian bushfires.  Elite people: o Celebrities or people we know as either victims or offenders. o E.g. Lindsay Lohan, anything gangland related.  News values: o Value judgements that journos make about the public appeal of a story and whether it is in the public interest. o Bad news is usually favoured over good news. News values  Threshold (importance). o Has to be massive e.g. bombing, mass killings, etc. o Media usually first use shock horror headlines - occasion for all sorts of narratives to explain what happened. o The more bizarre the more likely it will be reported. o Humorous, nostalgic, grotesque more likely to be reported.  Predictability (expectedness). o An event that is rare, extraordinary or unexpected it will be considered newsworthy o Equally, a story that is predictable may be deemed newsworthy because can plan their coverage & resources o Having already set the news agenda, media agencies will rarely do an about turn and reframe an issue according to a different set of principles.  Simplification (eliminating shades of grey). o Must be reducible to a min number of parts and themes. Headlines have to be short sentences, simple grammatical structure and often titillating (headline doesn‘t‘t give you details).  Individualism and personalisation (individual focus or causality). o Both are aspects of the process of news simplification; o Personalisation – that stories about people are favoured over those concerning abstract concepts or institutions. o Result is that events are frequently simplistically viewed as the actions and reactions of individuals. o Individualism - definitions of crime which highlight individual responses to crime are preferred over complex processes, cultural and political explanations. o Most criminals are described as being ‗impulsive, a longer, maladjusted, irrational, animal-like, aggressive and violent‘. o Emphasises their lack of normative social ties.  Risk (lasting danger). o Predisposition in newspaper to report crimes if the victim and offender are strangers. o Vast majority of serious offences, including murder, rape and sexual assault, are committed by people known to the victim; o Yet, media persist in presenting a picture of crime as random, meaningless, unpredictable and ready to strike anyone at any one time. o Children and young people are vulnerable to risk from ‗paedophiles‘ and the Internet. o Consequence – presents picture of crime that is meaningless, random and unpredictable which contributes to a heightened fear of crime because we think it‘s the kind we‘re more likely to experience.  Sex. o Connected to risk; o Media over-report crimes involving sex & violence; o Moreover, such stories are highly sexualised, even pornographic, in their representations of women as victims; o Such stories tend to draw on narratives about masculine violence as a ‗normal‘ or a ‗natural force‘ and where all women are vulnerable, potential victims in need of protection.  Celebrity or high status persons.  Proximity (spatial/cultural relevance). o Spatial – geographical nearness of event. o Cultural - Relevance of story to audience.  Violence.  Spectacle or graphic imagery.  Children and young people.  Conservative ideology and political diversion (deterrence/distraction from wider problems). o Focus is on violence of protesters rather than why they are protesting. o Deterrence. o Distraction from wider problems. o Perpetuates sense of divided hostile population under threat. o Usually around certain events. o Using recognisable frames of events e.g. crime rates on the rise, Melbourne among top 4 countries. o Usually no supportive stats. o When media tend to report on protesters – focus tends to be on violence of protesters not really what its actually about. Only interested in violence. o Discussion about what police are doing (focus), perpetuates a part. view. o All about the image of the police, distracts from wider issues, shows proactiveness of police. Categories of newsworthiness  Personification: o Focus on the individual. o Human interest stories.  Negativity: o Violence, harmful, deviant or sad. Limited perspectives offered  Highlight the views of certain people.  Can‘t talk to everyone, but they have to present some opinions/perspectives.  E.g. victims and their family, police.  Primary definers – set the parameters of debate regarding crime. o CJS officials. o Police. o Experts (criminologists, psychologists). o Politicians.  Define: o What is being talked about or reported on. o What problems exist. o Offer explanations for problems. o Develop or propose potential strategies for dealing with the problems.  Occupy positions of power.  Views – natural, truthful, authoritative.  Views – the truth, not a representation of the truth. Problems with media representations  Focus on sensational types of crime – random, attacked unexpectedly, stranger.  Interest for all – everyone is a potential victim.  Not representative of what crimes are actually occurring.  More likely to report on street crimes (high level of visibility) rather than mundane crimes like driving without a license.  More likely to report violence and sexual elements – sensational and more controversial because we‘re the most scared of them.  Paints a misleading picture of crime because statistically these aren‘t happening as much as represented.  ‗Fear of crime‘.  Media created myths: o Violent crime is common, property crime isn‘t. o Offenders are clever and evil monsters. o Victims are mainly children, women and elderly. o CJS is effective, fair and hardworking. o Police and lawyers never give up until they catch the bad guy.  Focus on individual aspects of a case.  Doesn‘t take into account broader issues surrounding criminal activity.  Doesn‘t look at issues like health education, welfare, upbringing, poverty, etc and things we can do to prevent it. Moral panic Based on the notion that societal outrage can be directed at certain groups in society through the representation of negative images of them in the media. Such representations, it is argued, will often lead to a public outcry which can then be used to justify harsh and oppressive treatment of those around whom the panic is created.  Four stages (Cohen): o Public concerns exists in relation to a social problem or tension (e.g. youth crime). Event/series of events occurs resulting in someone/something being defined as a ‗threat‘ (demonised and stereotyped) to values or social order. o The ‗threat‘ is made visible and exaggerated by the media and ‗moral entrepreneurs‘ (primary definers), making the problem seem bigger than it actually is. o Public perceptions and fears escalate to a degree that the perceived danger is far greater than the actual danger that exists. o State intervention – policies and laws (often very punitive and arguably counter-productive) are introduced to respond to and control the ‗threat‘.  E.g. Mods and Rockers: o Not because they were breaking the law. o Because they challenged societal norms and convention. o Seen as signs of social decline. o Disrespect for previous societal values and norms.  Implications – social control: o Moral panic legitimised increased social control. o The panic resulted in the social control of youths well outside the Mods and Rockers label.  Main problems with moral panics: o Inspires punitive and harsh responses. o Negative labelling. o Greater surveillance and intervention by the CJS. o E.g. Road Safety Amendment (Hoon Driving) Act 2011 (Vic):  Impound ―hoon‖ vehicles for 30 days.  Repeat offenders: face court and risk losing vehicle for a further three months. o E.g. Australian Bikie Gangs:  Harsh, restrictive legislation.  Organisations can be banned.  Being a gang member effectively illegal. Police and Policing: Culture, Discretion & Accountability W4 Criminology and the police  CJS: o Institutions, personnel, practices. o Police, courts, corrections. o Classical and positivist theories.  Police – most visible. o More likely to have some kind of a first hand experience with police. o Have significant power invested in them by the state to patrol and enforce the law. o Mediate relationships between law and the community and the CJS and the community.  Gatekeepers of the system.  Gap exists between ideals of policing and what was occurring in practice (day to day operation). o Between formal rules and how they were conducting themselves. Historical context  Prior to 19 century: o Policing was local. o Appointed as constables. o Numerous duties, bad pay. o Job fulfilled by labourers, soldiers and servants. o Lacked discipline, skills and accountability. o Drunk, immoral and behaved poorly.  Industrial revolution: o Rich and poor people lived in close proximity. o Centralised, state controlled policing.  Conducted in local areas. o Expected to be on the job 24 hours a day. o Frequently criticised because lacked skills to maintain social order. Emergence of ‘modern’ policing  Practices still evident today: o Force used as a last resort. o Uniform and presence – deterrent. o Politically neutral but accountable and funded by government. o Professionalisation (training and education).  Politically neutral – stays the same even if the state government changes. Approaches to policing  Problem orientated policing: o Identify and solve ―problem‖ rather than ―treat‖ symptoms. o Focus on trying to prevent the crime or stop the problem happening before it rather than just reacting. o Discover root cause and try to illuminate it e.g. not just arresting drug users, focusing on the dealers and how to stop them.  Evidence-based policing: o Scientific evidence. o Based on research, focus on linking research and practice to improve policing. o Do what research has shown to be effective e.g. looking at what other countries are doing and adopting it if it works.  Restorative policing: o Alternative diversion processes e.g. conferencing. o Moving away from CJS and try to repair harm to the victim. o E.g. instead of sending them through the CJS they send youths into the community – if they graffiti they might help clean it or pay for it to be cleaned instead of being arrested. Zero tolerance policing  Arresting or applying a certain action for all offences or for specific offences.  Extensive criticism – if you arrest anyone doing a minor crime you will eventually deter major crimes from happening (broken window theory).  Claims – petty crime and anti-social behaviour will have a zero tolerance and major crimes will then be deterred.  Rates of petty and serious crimes fell significantly in NY and it is attributed to zero tolerance. o Criticism – crime could have shifted from Manhattan to other cities.  Operation unite – Australia and NZ. o Zero tolerance approach to alcohol-fuelled violence. o National arrests 900+ each campaign. o Target alcohol abuse, violence, anti-social behaviour. o 5 campaigns since December 2009. Community based policing  Try to generate a better relationship between police and young people, and police with groups that might be marginalised (so they can change the way they see the police).  Police must be able to talk to the community about concerns and share important info.  Community has to be supportive and involved in the process.  E.g. Neighbourhood Watch, Crime Stoppers.  Benefits: o Empowerment of communities. o Improved police-community relationship. o Decreased potential for conflict. o Reduced fear – more police in the community and understanding them better decreases fear. o Better crime prevention strategies.  Limitations: o Used as a way of getting information. o Potential to increase level of coercive contact. o One-way street – community expected to change but not police. o Police have power to decide who participates. o Ignores strong power relations. Shift in policing approaches  Shift from traditional to mix of traditional and community based styles.  Old function – paramilitary approach, maintain order, apprehend offenders.  New function – enforce the law, prevent crime, detect crime, conflict resolution, social services, social cohesion.  Change in interviewing techniques. o Way police were interrogating offenders wasn‘t effective – now they try to engage them into a more conversational type approach e.g. ask how their life is.  Based on research – example of evidence based policing.  Shifting communicating styles: o SM networks and crime updates. o ‗Police News‘ on YouTube. Importance of trust and confidence in police  The more legitimacy and confidence we have in the police, the more we respond to the police and the law.  Engagement with the community – studies show that the more we see them representing our values and understanding us, the more confident and respectful we are of them. The role of law and order  CJS weak and ineffective.  Police – central political focus.  Primary definers – police leaders and police associations.  Through political processes that police secure resources.  Numbers and powers of the police – key political issue.  Police – street corner politicians, law, legislation, visible social norms. Policing contexts  How they approach the role: o Political context – legislation, police powers, budgets, media campaigns, law and order agendas.  E.g. change in laws regarding parole. o Social context – what is happening in society, social norms/expectations.  E.g. expectation that they‘re going to prevent dangerous people from being on the street. o Organisational context – which offences should be policed; how should resources be allocated, which groups/areas should be targeted.  E.g. they can say they need more resources to address issues (primary definer role). o Individual context – should the offence be investigated; does sufficient evidence exist; what charges should be laid. o Legal context – what crime has been committed, what law has been broken.  Approach crimes in different ways depending on law being broken.  How policing has changed in regards to these contexts: Knife laws in Victoria: o Conduct random searches in a public area if:  Violence or disorder involving weapons has happened in that place before, or:  Police believe it is likely to happen again, or:  Police choose an area as being an ‗unplanned designation area‘. o $1000 on the spot fine (over 16 years old). o $2000 if near pub or club. o Under 16 – no fine, but must attend court. o If you get caught twice you go to court. o How it was shaped by the contexts:  Social – social norms/expectations; concern about knife violence; culture violence; drug/alcohol problems.  Organisational – which offences should be policed; how should resources be allocated; which groups/areas should be targeted.  Individual – should the offence be investigated; does sufficient evidence exist; what charges should be laid; effectively removed (zero tolerance style). Police discretion  The police can: o Arrest. o Summons. o Caution. o Detain. o Fingerprint. o Body samples. o Conduct searches. o Use force.  Given the power to pick which way they want at the time unless the law specifies a particular way – discretional power. o E.g. deciding whether to give a ticket or just issuing a warning.  Consequences of discretion: o Complexities and ambiguity in the law. o Need to prioritise. o Avoid harsh consequences and enhances justice. o Significant power imbalance and potential to abuse. o Linked to discrimination and corruption. o Some groups overly targeted. o Can positively allow for diversion away from the CJS but it is near impossible to regulate.  The culture in which the police operate and function can impact significantly on who may be targeted and who becomes involved in the CJS. Police culture  Body of attitudes, values and practices.  Informal rules.  Influences police discretion.  Supports the routine violation of formal rules.  Varies within and between police organisations.  Police can conform or rebel against the dominant culture.  Enculturation – adapts and assimilates to the culture in which one lives, works, exists.  The practice not the theory of policing prioritised. o First hand knowledge passed down from senior police in the field, rather than official rules.  Varies in different locations.  Shapes police in an individual and collective level.  Characteristics: o Sense of mission – the thin blue line:  Crucial, dangerous but thankless task.  Not just a job, but a way of life.  Us versus them.  Law enforcers versus law breakers. o Action orientation – real policing:  Dangerous/potentially dangerous confrontations.  Responding to reports of crime, raids, shoot outs, car pursuits.  Homicide squads and tactical response units – greatest status. o Cynicism and pessimism:  The law – limiting and naïve.  Must go above and beyond the call of duty to do their work.  Key components (negative): o Masculinity – traditionally masculine perspectives and practices.  Real policing – male, confrontation, physicality.  Presence of women ―lowers morale‖ (1985). o Racism – prejudice, hostile to certain races, ethnicities.  Racial profiling.  ‗Code of silence‘: o ‗The brotherhood‘. o Socially isolated. o Civilians can‘t/don‘t understand. o United by experiences. o Undivided loyalty. o Conceals wrong-doing by its members. Key points  Differences exist within and between police cultures.  Police officers as individuals will not all equally adopt or adhere to the dominant police culture.  Police culture cannot be divorced from the social, political, individual, legal and organisational context of policing.  There are positive aspects of police culture (common sense of spirit, mission, respect). Police corruption  Corruption of authority.  Kickbacks.  Opportunistic theft.  Protection of illegal activities.  Set-ups.  Direct criminal activities.  Internal payoffs.  Planting evidence.  Tip offs to those under investigation.  Consequences: o Influences honest officers to accept corruption as part of the job. o It leads to a sense of pointlessness amongst managers. o It becomes a means by which corrupt officers can manipulate and control fellow officers. o It discourages vigorous inquiry by internal investigators.  Problems: o Undermines public confidence. o Abuse of power. o All encompassing or systemic. o Continuing problem. Police accountability  Problems: o Power of police association. o Police culture. o Powerful position of police. o Limitations in holding police accountable. Summary  Not all police cultures are embedded with corruption.  Not all police cultures are negative.  Police culture can operate in positive ways. o Common sense of spirit, mission and safety.  But negative cultures can impact on how police operate in practice. Globalisation W5 Traditional crime  Crime has tended to be local in nature. o Occurring within country, state borders.  The responsibility of combating crime is local in nature. o Laws are local in nature. o Are policed locally. o Punishment occurs locally. Changes in crime  Global and local responses e.g. the end of the human rights treaty (global); how we immediately deal with boat people when they arrive (local).  Global and local impact e.g. local policies about how and when people smuggling is dealt with.  International law.  Jurisdiction.  Political.  Human rights.  Crime. Globalisation  The growing interconnectedness of states and societies and the progressive enmeshment of human communities with each other. o We‘re getting closer and able to interact with people more readily and create stronger bonds than we used to. o We participate more socially and culturally with each other rather than just saying hi and bye, etc. o Engaging more.  Scholte (2000) suggests 5 definitions: *fill in* o Internationalisation. o Liberalisation – opening up of borders and markets around the world.  Can cause criminalisation to arise. o Universalisation. o Westernisation/modernisation. o Deterritorialisation.  Borders disappearing.  Powerful states being able to push certain agendas and overpower unpowerful states.  Space-Time compression: o Increased speed of communication and movement of ideas, information, capital and people.  Easier and quicker to do things.  The world is smaller and we can do things easier and quicker.  E.g. through the internet. Globalisation and crime  The concept of crime is shifting due to: o Changes in technology.  Types of crime we worry about and the way we police. o Changes in communication.  E.g. phone taps. o Changes in transportation/mobility.  Increase in use of certain types. o Shift towards free-market economies.  Particularly organised crimes can flourish in different areas where the policing or government regulation isn‘t as strong.  Crime can cross multiple nation states.  Policing and prosecuting is now a global process. Globalisation and transnational crime  Transnational crime – crime that place across a national border.  Crimes that can be: o Committed in more than one country. o Cross borders. o Or see criminals benefit in another country.  E.g. human trafficking, illegally crossing a border.  Why they‘re important to discuss: o The consequences of globalisation in relation to crime and criminal justice.  How we perceive these crimes and what we do with them.  What impact they might have on other places/  Where the influence is coming from. o The activities are not always designated as illegal but often fall within the broader concept of social harm. o Usually involve powerful actors.  Global inequalities have bred crime in some regions;  Inequality has seen transnational crime thrive;  Passas (1998) argues that global inequalities (North/South; East/West) have: o Increased demand for illegal goods/services. o Increased incentives to participate in illegal transactions. o Reduced the ability to police illegal activity.  Regions of chaos recognise our (region of order) need for weapons, drugs, etc and bring it to us and we pay for it. o We can create some order by eliminating the incentive and buying/policing it instead.  Considered a growing and significant problem; o Annual turnover of transnational organized criminal activities is estimated at around $870 billion (UNODC);  Australian nationals are increasingly more frequently involved in crimes both as victims or accused in other countries;  Nationals from other countries more often accused of or victims of crime in Australia .  Impact on criminal justice: o As a result of the increasing prevalence of transnational crime there has been:  Greater attention required by the international community towards transnational crime;  The growing need for international cooperation between states;  As a consequence there is greater conflict and complexity issues between states.  Policing transnational crime: o Significant resources spent on controlling transnational crime:  Increases to police powers.  Policed by international organisations such as EUROPOL & Interpol. o Focus largely on cross-border crime as transnational organized criminal activity:  Drug & human trafficking.  Money laundering.  Smuggling of artefacts such as ivory, & legal goods cigarettes etc. o Interpol:  ―World police‖: 188 member countries.  Provides communications network for info sharing.  Maintain databases and co-ordinate meetings with member countries.  Provides support to local police during disasters and major crimes.  Not empowered to enforce the law.  Key issues: o Increasingly punitive criminal justice domestically.  Increases in imprisonment. o Growing international cooperation between states combating transnational crime. o Growing international attention to transnational crime as well as war crimes and crimes against humanity. o Increased corporate involvement in criminal justice. o Old crime: New ways  People trafficking.  Drug smuggling.  Terrorism.  Arms smuggling.  Money-laundering.  Animal trafficking. New opportunities: New crimes  Cyber crimes.  Financing terrorism.  Global terrorism.  Environmental crime. Terrorism  Legal definition: o The Criminal Code Act 1995 o Defines a terrorist act as ‗an action or threat of action‘ with the intention of: o advancing a political, religious or ideological cause; and o coercing, or influencing by intimidation, the government of the Commonwealth, State or Territory or the government of a foreign country or intimidating the public or a section of the public.  Action will not be a terrorist act if it is advocacy, protest, dissent or industrial action and is not intended to cause serious physical harm or death, endanger the lives of others or create a serious risk to the public health or safety. o The definition is often criticized because it is broad and lacks a singular meaning is unclear.  Terrorism and criminology: o Schafer (1974) ‗convictional criminal‘ as a politically motivated offender, the offender who ‗is ―convinced‖ about the truth and justification of his own beliefs‘ and has ‗an altruistic-communal motivation‘ for her or his offences. o Can relate to social anomie through the rebellion or conscious withdrawal of legitimacy from the prevailing social structure and the attempt to replace it with a new system. o Criminalization of political conflict (Cohen). o Old and new forms of terrorism (Giddens 2005)  Old terrorism.  Tight local organisation.  Local objectives.  Low levels of violence.  Restraint in tactics.  Threat to specific targets. o New terrorism:  Loose global networks connected through technology.  High levels of violence.  Broader threat to Western and cosmopolitan interests.  Located in failed or failing states:  ‗where the state is too weak to be dangerous, non-state actors might become too strong‘.  Terrorism represents the end of the monopolisation of the use of violence by the state; terrorist groups are described by as the ‗NGO‘s of violence‘.  Global terrorism: o Not geographically bounded. o Technology = increased threat. o Committed by someone within or outside. o Organised by someone within or outside. Example – September 11  Global response: o New response to terrorism required (greater resources). o Portrayed as the ‗greatest threat to security‘. o Unprecedented international coordination/cooperation to overcome territorial limitations. o National security is a more prominent focus for police and other agencies. o Investigation and policing powers increased. o Introduction of new laws.  The war on terror – what it means for due process: o Throughout the world new legislation introduced: o Australia:  Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2002 (Cth).  Anti-Terrorism Act (No.1) 2004 (Cth).  Anti-Terrorism Act (No.2) 2005 (Cth). o US:  Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001. State power  AFP: 24 detention order.  A judge can extend detention order to 48 hours.  AFP: 12 month control orders.  Being at specified areas or places or leaving Australia (curfews, restrictions).  Communicating or associating with certain people.  Accessing or using certain forms of technology/telecommunications (including the internet).  Carrying out activities, including work activities.  Requires persons to wear a tracking device. Global response to terrorism  For example the USA PATRIOT Act (USA PATRIOT Act (Uniting (and) Strengthening America (by) Providing Appropriate Tools Required (to) Intercept (and) Obstruct Terrorism Act of 2001). o ‗Reasonable suspicion‘. o Authority to intercept wire, oral, and electronic communications relating to terrorism (or threat of) from US and non-US citizens. o Authority to share this information. o Prevent money-laundering. o Removal of investigative obstacles. o Border security measures. o Penalties to attacks on transport systems. o Detain persons based on mere suspicion. Due process rights  Right to liberty and security of person.  A person has the right to liberty.  A person who is arrested or detained must be informed at the time of arrest or detention of: o The reason for the arrest or detention. o Any proceedings to be brought against him or her. Right to silence  During police interview and investigation.  Right not to testify during any criminal proceedings.  Evidence Act 2008 (Vic): o ‗forced‘ confession/admission inadmissible.  Should these rights be available to all individuals?  Should all individuals have equal access to justice?  Are there any circumstances where there may be a basis for removing the presumption of innocence, or the right to remain silent or the right to liberty and security? NSA surveillance (US)  Formed to U.S. Government‘s need to join the dots of information.  A range of surveillance programs in place, including: o NUCLEON ―intercepts telephone calls and routes the spoken words‖ to a database. o PRISM.  Immunity from civil liability or criminal prosecution due to FISA (Foreign Information Surveillance Act). PRISM  Founded 2007.  Monitors potentially valuable foreign.  Accounts for nearly 1 in 7 intelligence reports, "over 2,000 Prism-based reports‖ every month.  Unprecedented access to the servers of major companies (Microsoft. Yahoo. Google. Facebook).  Including but not limited to: o …audio and video chats, photographs, e-mails, documents, and connection logs… [Skype] can be monitored for audio when one end of the call is a conventional telephone, and for any combination of ―audio, video, chat, and file transfers‖ when Skype users connect by computer alone. Google‘s offerings include Gmail, voice and video chat, Google Drive files, photo libraries, and live surveillance of search terms.  ―According to figures published by a major tech provider, the Internet carries 1,826 Petabytes of information per day. In its foreign intelligence mission, NSA touches about 1.6% of that.‖  ―However, of the 1.6% of the data, only 0.025% is actually selected for review. The net effect is that NSA analysts look at 0.00004% of the world's traffic in conducting their mission— that's less than one part in a million.‖  NSA ―scooped up as many as 56,000 emails annually over three years and other communications by Americans with no connection to terrorism‖.  Helped stop a terrorist attacks in 2009 (a New York subway bomb). Intelligence and surveillance • Instead of crime, policing has now embraced globalisation including: Communication. Technology. Co-operation. Culture. Judging the Judges: Courts and Sentencing W6 Sentencing and prosecution – contentious?  Over the past 20 years, become controversial. Why: o Contradiction between the state (or prosecution representing the satet) and the victim.  Victims‘ Rights Movement: o Greater recognition of victims. o Giving them a greater role in the sentencing process. o Creates controversy – if a sentence is too lenient it is seen as a direct attack on the victim and it‘s difficult to argue over an emotive response from a victim or their family.  Link between victims‘ interests and more punitive justice.  Justice seen to be done or not done. o Punishment moved from public to private realm. o Public executions to prison (behind closed doors).  Growth of the media plays a part in prosecution and sentencing being contentious.  Law and order – courts too lenient? o Donna Fitchett:  2007: found guilty of murdering her two sons.  2009: conviction overtuned on appeal.  2010: Found guilty (again) of murdering her two sons.  Sentence: Maximum – 27 years imprisonment; Minimum – 18 years.  Argued that she didn‘t express remorse and that 27 years wasn‘t enough. o John Xydias:  2010: Plead guilty to 25 counts of rape and 61 counts of indecent assault.  Sentence: Maximum – 28 years imprisonment; Minimum – 20 years.  Argues that sentence should have been 1235 years imprisonment.  Sentencing = highly politicised and controversial. Public perceptions  Roberts and Indermaur (2007): o 4,270 respondents:  46% ‗not very much‘ confidence.  24% ‗no‘ confidence.  70% harsher sentences.  46% death penalty. o Argued that these results for wanting harsher penalties was a result of what they‘d seen in the media. Role of the media  Criticisms of the media: o Don‘t report all facts of the case. o Draws heavily on emotion. o Not accurate, fair and balanced.  Criminologists argue that the media focus on the most serious and controversial cases and doesn‘t often provide an understanding of all the facts.  Selective media reporting.  Doesn‘t inform public of the larger more broader sentencing for crimes.  Helps fuel the idea that sentences are too lenient because they don‘t present facts such as what the average murder sentencing is. Trial by media  Examples: o Lindy Chamberlain (1980):  Dingo stole my baby.  Judged guilty by the media.  June 2012: Coronial Finding - death likely caused by dingo.  Apology offered.  Media made her out to be bad. o Schapelle Corby (2002):  Drug smuggling charges.  May 2012: Sentence cut.  May 2013: Australian.  Media showed both innocent and guilty side.  Influencing juries: o Tell juries not to read anything about the cases. o NSW 1994 - they had difficulty differentiating between what they saw in court and what they saw in the media and it influences their decision. o Unable to clearly remember the facts of the case. o Demonstrates the impact the media has on influencing perception. o Types of offences  Summary Offences: o Heard before a single Magistrate, no jury. o Traffic offences, public disturbances, theft, some kinds of assault. o Tried by a police prosecutor representing the State.  Indictable Offences: o Tried before a Judge (County Court) or Justice (Supreme Court), with or without jury. o Most serious criminal offences – murder, manslaughter, sexual assault, arson. o Tried by a Crown prosecutor or solicitor from the Office of Public Prosecutions.  Indictable Offences tried Summarily (hybrid): o Less serious indictable offences. o Maximum $100,000 or 5 years imprisonment. o Obtaining property by deception, handling stolen goods, selling drugs, obtaining unregistered firearm. o Tried by a police prosecutor representing the State. Victorian court hierarchy  Australian High Court: o Located in Canberra - highest court in the Australian Judicial System. o Interpret and apply the law of Australia. o Cases of specific Federal significance o E.g. Mabo – important for Indigenous – giving them ownership of land.  Supreme Court: o Most serious criminal offences. o Lower amount of cases. o E.g. serious sexual assault, murder, manslaughter, treason. o Appeals from County Court and Supreme Court. o 102 cases finalised (125 offenders). o 48% pleaded guilty. o 54 cases proceeded to trial.  County/District Court: o Indictable offences e.g. sexual assault, serious assault, intentionally or recklessly causing injury. o Appeals from Magistrates Court:  Sentence inadequate – prosecution can say it‘s not enough.  Sentence excessive – defense can say it‘s too harsh.  Error on point of law – if they think the magistrate erred in some way. o Koori Court division – trial since 2009. o 73% resolved by guilty plea o Only 378 cases proceeded to trial o 53% found guilty  Magistrates‘ Court: o Five speciality courts – Neighbourhood Justice Centre, Drug Court, Family Violence Court, Koori Court, Children‘s Court, Magistrates‘. o Summary and indictable offences tried summarily. o 90% of all cases. o E.g. traffic offences, theft, selling drugs. Prosecution process  Criminal proceedings against individuals.  State versus the accused: o Prosecutor. o Accused and their legal representative. o Judge.  Independent and objective referee.  Determine guilt (if no jury).  Determine sentence (if guilt determined). o Jury – determine guilt.  Two main functions: o Is the person guilty? o If so, what is the appropriate punishment?  Two elements of guilt: o Actus Reas – guilty act. o Mens Rea – guilty mind. o Have to demonstrate that they had the guilty mind and did the guilty act. Standard and burden of proof  Guilty act usually easier to proof.  Guilty mind – has to be proven beyond reasonable doubt.  Have to demonstrate that they had the guilty mind and did the guilty act.  Accused person doesn‘t have to prove they didn‘t do it – the prosecution has to prove they did do it.  Criminal trials: o Standard of proof – beyond reasonable doubt that the defendant committed the offence. o Burden of proof – rests with the prosecution (have to prove they‘re guilty).  Civil trials: o Standard of proof – on the balance of probabilities.  Is it more probable or not that something occurred? o Burden of proof – rests with the plaintiff. Plea bargaining  Discussions between prosecution and defence lawyer outside of court trial.  Accused person‘s plea.  Possibility of negotiating the charges.  Example - reduce murder to manslaughter.  Effects: o Alter the seriousness of the conviction and sentence. o Removes the need for prosecution to prove guilt beyond reasonable doubt.  Benefits: o Charge and sentencing concessions for defendant. o Reduced costs. o Saves resources. o Spares victims from cross-examination.  Limitations: o Undermines due process ideals. o Removes the trial. o Informal – no transparency or scrutiny. o Victims‘ rights not considered. Sentencing • Determines the nature of the punishment to be endured by those guilty of a crime. • Historically = largely unregulated. • Today = effective and humane. • Instrumental - ensures individuals that are found guilty of a crime are punished appropriately and proportionately.  Symbolic - reaffirms the boundaries dividing the ‗norm‘ from the ‗deviant/criminal‘.  Sentencing laws – what judges have to consider: o 2 key pieces of legislation:  Sentencing Act 1991 (Vic).  Children, Youth and Families Act 2005 (Vic). o Also based upon prior court judgments (precedents):  Disparity principle: the sentencing of a co-defendant needs to be considered.  Proportionality principle: measure the seriousness of the crime against the severity of the punishment. o Discretionary Decision Making:  Used to allow flexibility to achieve justice based on the nature of the crime and the specifics of the offender.  Factors considered in sentencing: o The penalty allowable. o The court. o Guilty plea. o Sentencing principles. o Sentencing tariffs (patterns). o Offender‘s prior criminal history. o Maximum penalty. o Nature of the offence. o Offender‘s culpability. o Guideline judgments. o Personal circumstances of the victim. o Demonstration of remorse. o Aggravating factors: increase culpability – person more responsible (level of premeditation, group attack, vulnerability of victim). o Mitigating factors: reduce culpability – person less responsible (remorse, age, prior abuse).  Sentencing principles: o Minimum - minimum term that must be served before parole eligibility. o Maximum - maximum term that can be served before the sentence is completed. o Just Punishment – punishing the offender to an extent and in a manner which is just in all circumstances.  Getting the judge to see what the offence was and what would be a just sentence – take into account victim and offender
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