Comparative Criminal Justice Systems
In Phillip L. Reichel’s book Criminal Justice systems 6th edition Phillip Reichel uses the historical, political and descriptive approaches to compare criminal justice systems, although it is the institution and actors strategy that Lynch emphasizes. Legal systems and legal traditions have been studied and compared since the early 18th century. We will be discussing why criminal justice systems are studied and evaluating and comparing how the historical, political and descriptive approaches are used to study today’s criminal justice systems.
In reference to why we study other justice systems although a society cannot replace their legal system completely with that of another country’s legal system it is important that we use comparative studies, as there are both provincial and universal benefits. Comparing how other criminal justice systems operate provides a point of contrast for a country’s own justice system also enabling them to analyse and to better understand their legal system in order to help improve the way in which their system operates.
As to the universal benefits comparative studies help nations to better understand differences and similarities in other nation’s justice systems to help them cooperate and work together to combat international crime. Although law enforcement agencies have worked together for centuries with the first extradition agreement between America and Great Britain being made in 1794. One may suggest that it is essential that criminal justice systems work more closely today than ever before as organised crime has developed more on an international scale. Countries can co-operate together on both a bilateral and multinational basis.
The latter being where more than two countries work together for example the EU and the former being where two countries work together usually neighbours for example America and Canada. As with all three approaches the primary goal is to convey information. With the historical approach information studied is used to tell us what mistakes and successes have already occurred and what earlier experiences tell us about the present. Although perhaps the most important benefit gained from using the historical approach is how knowledge of the past prepare us for the future?
As the criminal justice system and judiciary changes over time and by not having an understanding of the past one may suggest it would be difficult to prepare for the future. Over the years there have been many changes in criminal justice systems around the world and the historical approach has helped legal systems learn from past mistakes and successes in their penitentiary system’s, rehabilitation processes, judiciary, case law and other areas such as investigative techniques and the way in which we gather evidence.
As mentioned some of the benefits of using an historical approach is how knowledge of the past can help prepare us for the future and what we can learn from our mistakes and successes. Improving conviction rates and decreasing wrongful convictions has always been a goal sought by criminal justice systems globally. The introduction of DNA had a huge impact on law enforcement agencies around the world and improved the way they investigated crimes, gathered evidence, prosecuted, solved crimes, decrease wrongful convictions and helped in exonerating people who had already been wrongfully convicted people.
In 2002 the innocence project was set up in the United States and as of December 2011, 307 were exonerated of wrongful convictions by the use of DNA testing since 1989, 17 of whom had been sentenced to death. The first use of DNA was in England in Leicester when police asked Dr. Alec J. Jeffery’s in 1986 to help identify a suspect involved in two rape-murders. The tests actually cleared the original suspect and police then took several hundred DNA samples from males in the local area which led to Robert Melias being the first person being convicted with the use of DNA in 1987.
After this case America began using DNA evidence and Tommy Lee Andrew was the first person to be convicted in the United States in November 1987 also for rape. Another example of the historical approach is Gustave de Beaumont’s and Alex de Tocquellive’s report of the American penitentiary structure in 1831 and 1832 and the French’s prison system. They criticised the French penitentiary system as it was costly to the treasury, was low on discipline and there was a high rate of inmates being sent back to prison.
The American system however showed a profit as inmates were made to work during the day and there was a high level of discipline as inmates were kept in isolation at night. Having the system run this way not only showed a profit but also provided a low rate of recommittals. Gustave de Beaumont and Alex de Tocquellive’s compared the American penitentiary system with not only their own French system but also the penitentiary system of Switzerland. Their report suggested ways to try and help their system by incorporating the American system and is an example of how we can learn from earlier mistakes and successes.
As discussed one of the reasons we compare legal systems is in order for countries to work together to combat crime they must understand the differences and similarities in how their legal systems operate. Although for a country to work with another country it is also important to understand each other’s political system. The political approach is of importance when comparing legal systems as politics not only has an effect on a nation’s justice system but also effects interaction among nations.
An example of how politics has effected both a nation’s justice system and interaction among nations is the case of Yvonne Fletcher. On the 17th April 1984 Yvonne Fletcher a Police officer was on duty during a protest outside the Libyan embassy. Without warning from one of the windows of the embassy gunfire was discharged at the protesters. Eleven people were injured including Fletcher who was fatally wounded after being hit in the stomach. Yvonne Fletcher died one hour later after being taken to Westminster hospital.
The shooting resulted in MI5 being called and armed police surrounding the Libyan embassy for eleven days in one of the longest police sieges in London’s history. Britain at the time had diplomatic relations with Libra which meant they needed permission from the Libyan government to enter their embassy as under International law an embassy is a diplomatic premise. Although police were aware of this they still wanted to enter the Libyan embassy but at least needed authorization from the British prime minster, then Margaret Thatcher.
As Margaret Thatcher was not in the country the responsibility was Douglas Herd’s then Home secretary to negotiate permission from the Libyan government to enter their embassy or to ignore International law and enter the embassy without their permission. The leader of the Libyan government then Gaddafi not only decided to not give consent to enter the Libyan embassy but declared that their embassy was under attack and in turn Libyan soldier’s surrounded the British embassy in Libya. With the risk to employees of the British embassy being harmed and diplomatic
immunity under International law the British government allowed the embassy staff to leave the building and escorted them to the airport to return to Libya. As a result of the embassy siege and Yvonne Fletcher the United Kingdom ended all diplomatic relations with Libya and in 1987 passed the diplomatic and consular premises act. The Diplomatic and consular premises act 1987 allows the UK government to determine which land is considered to be a diplomatic or consular premise and has been used once when the Cambodian embassy was occupied by squatters.
Another example of how politics has effected a nation’s justice system is the war on Iraq. In 2003 George Bush declared war on Iraq and within a month America had declared victory. Although the American army had taken control there was widespread looting and riots and the need for a new police force was required. New York City’s former police commissioner Bernard Kerik was given the task to not only reform the police but to improve other areas such as: the border controls and customs.
Bernard Kerik decided that the best way to do this was to retrain the Iraqi police force from everything from human rights to the use of fire arms. The training was out sourced to an American consulting firm called Dyn Corp International, this is an example of how a political system can influence a nation’s police force. Today there are 42,000 members of the Iraqi police all of which have completed the training provided by DynCorp International with more than 5,700 also completing specialized training from the Italian police and NATO.
Although when comparing legal systems Lynch uses the historical and political approaches it is the descriptive approach and in particular the institution and actors strategy that Lynch emphasizes on for his book. In order for us to evaluate and compare each other’s legal system’s we first need to know how a system is supposed to operate. The descriptive approach gives as a description of how a country’s legal system is supposed to operate. It is by using the descriptive approach that we can compare similarities and differences between legal systems.
The descriptive approach use’s two strategies the functions and procedures strategy and the institution and actors strategy. The main difference between the functions and procedures and institutions and actors strategy is that the institutions and actors strategy enables us to compare a large number of legal systems. It is because of this that Lynch emphasizes this strategy. The functions and procedures strategy can help us group and compare countries based on their similarities as Lynch argues that all countries require that similar jobs be done or thou there may be more differences between the people doing the job then the jobs themselves.
The functions and procedures strategy is not as helpful when comparing differences between legal systems. For example America, France and China have procedures for arrest and gathering evidence or trying to protect suspects against prolonged pre-trial detention. The functions and procedures strategy can be used to group such countries and compare similarities for example America, France and China all have time limits on how long a suspect should be held without charge. However when comparing a large number of legal systems on how they try to protect suspects against prolonged pre-trial detention we may find more differences.
The institution’s and actors strategies approach helps us more when there are more differences between legal systems. For example when comparing how countries protect suspects against prolonged pre-trial detention. If there are a number of differences the institution and actors strategy compares systems based on their institutions such as their courts and corrections thus enabling to compare more countries and both similarities as well as more differences. The Historical, Political and Descriptive approaches each provide ways to compare criminal justice systems and each have their own benefits.
The Historical approach tells us how knowledge of the past can help us prepare for the future and helps us learn from past mistakes and successes. The Political approach tells us how politics can affect a nation’s justice system as well as interaction among other nations. The descriptive approach (functions and procedures/institution and actors strategies) explains how a nation’s justice system is supposed to operate, the main components of a justice system and helps us compare a large number of different justice systems.
We compare legal systems not only for the provincial benefits but also to improve multinational cooperation to help combat international crime. Organized crime has increased over the years and criminals work more closely with criminals from other nations, as Thomas Friedman a New York columnist writes in his book “The world is flat”. Therefore it is equally important if not more important that criminal justice systems work together and understand each other’s legal systems and traditions.
