With the trial of Paralympian Oscar Pistorius concluding in a shock verdict, the world is reeling and many people are asking me, “Who’s interests does the criminal justice system really serve”. Many people are really angry about the verdict, saying that Judge Masipa was bought and paid for. Others think she has lost her mind! Others are blaming BEE and saying she is not qualified to be adjudicating this case. Very few people are happy about the outcome of this trial and are asking,” Where is the justice for Reeva Steenkamp?” Judge Masipa has had to increase her security due to death threats from an furious public. It is obvious that there were many errors in the judgement and this can be addressed on appeal. But it probes the question asked above.
The deeper and more concerning question for me is, is our criminal justice system serving and protecting the people that it was designed to serve THE VICTIM and what can be done to ensure real justice for all.
WHAT CAN THIS SYSTEM DO FOR THE VICTIM
The criminal justice system is a government department that comes under derisive attack from all quarters. Conservatives, liberals, radicals, feminists, law and order advocates, civil rights advocates and civil libertarians all find fault with its rules and operations and enforcement. Even its officials join the chorus of critics calling for change. I found the following sentiments profound!
“If there is one word that describes how the criminal justice system treats victims of crimes and witnesses to crimes it is “badly”. James Reilly Director of Witness Assistance Project.
“Crimes that terrorize may take many forms, from aggravated assault to petty thievery. But one crime goes largely unnoticed. It is a crime against which there is no protection. It is committed daily across our nation. It is the painful, wrongful insensitivity of the criminal justice system towards those who are the victims of crime…. the callousness with which the system again victimizes those who have already suffered at the hands of an assailant is tragic” Sen. John Heinz Sponsor of the Omnibus Victims Protection Act Passed By Congress
“Without the cooperation of victims and witnesses in reporting and testifying about crime, it is impossible, in any free a society, to hold criminals accountable. When victims come forward to provide this vital service, however, they find little protection. They discover instead that they will be treated as appendages of a system appallingly out of balance. They learn that somewhere along the way the system has lost track of the simple truth. That it is supposed to be fair and to protect those who obey the law while punishing those who break it. Somewhere along the way, the system began to serve lawyers and judges and defendants, treating the victim with institutionalised disinterest…The neglect of crime victims is a national disgrace.” Lois Herington, chairperson of the Pres.’s Task Force on Victims Of Crime.
Experts are in consensus that the criminal justice system does not measure up to expectations, failing for the most part to deliver on its promises. It doesn’t meet the wants and needs of victims as its “clients” or as “consumers “of its services.
Suppose a person is a victim of robbery, rape, assault or burglary. What could and should the system do for them? Compare that with reality.
The police could rush to the victims aid and provide whatever physical and psychological aid that might be needed. They could treat the victim with respect. They could catch the culprit and speedily return the stolen goods to the rightful owner. The prosecutor could charge the suspect and press for a swift trial. Alongside the legal proceedings, the prosecutor, as a lawyer, could attend to the victim’s economic interests. Upon conviction of the offender, the prosecutor could see to it that the victim’s views were fully aired. The judge could hand down a sentence that would satisfy the victim and indeed justice could be done.
In reality this scenario is rarely played out. Typically, victims find themselves entangled in conflicts with the police, prosecutors, defense attorneys, judges, and parole boards.
Of all street crime victims, women who have been raped suffer most from the shortcomings of the criminal justice system. Secondary victimisation is common as they are interrogated by police, have to endure medical examiners, have to tell their stories in court, which can be terrifying and embarrassing for them. Most receive no psychological assistance even though they are suffering with Post Traumatic Stress Disorder or other anxiety related disorders. Sadly little has been done to address the shortcomings of the justice system in this regard.
The discovery of the several sources of conflict between victims and the various agencies and officials designated to assist them raises a fundamental question: exactly whose interests are chiefly served by the current operations of the criminal justice system?” Answering this question is of critical importance and is no longer simply academic. How victims see themselves, the demands they make as clientele of the criminal justice system, and the reforms they labour for politically, all hang in the balance.
DOES THIS SYSTEM SERVE VICTIMS?
According to Andrew Karmen, a Victimologist, “the traditional or official answer is that the justice system primarily serves the interests of ”the people” or “society” and weak , disadvantaged groups in particular. In a democratic society, all branches of government are supposed to be responsive to the will of the law-abiding majority.”
Karmen is of the view that, the police are granted the authority to maintain order, guarantee public safety, and protect the lives and property of the innocent. The prosecutorial offices should act as public law firms, with victims as their clients. Correctional officials are charged with the responsibility of supervising and rehabilitating dangerous criminals so that the streets might be safer.
The justice system ought to place a higher priority on satisfying the needs of victims, according to two rationales. The first argues on humanitarian grounds that crime victims, like people suffering from natural disasters such as floods, tornadoes, fires and economic dislocations such as widespread unemployment need assistance if there predicament is so great that they can’t cope with it themselves. If such help is not forthcoming, the restoration of victims as productive members of society is delayed. The second rationale asserts that the criminal justice system is obliged to intervene on behalf of the innocent, the injured, and the exploited and to serve as their forum for airing grievances against people and entities that have allegedly harmed them, because there is a social contract that binds members of society together. When rules are violated and losses inflicted, the government must intervene to restore order and harmony through restitution.
Assuming that the criminal justice system is designed to serve victims but doesn’t satisfy their needs and wants very well today, then it simply needs some adjustment. There is no basis for any long-term conflict between victims and officials over how the system is administered.
DOES THE SYSTEM SERVICE OWN BUREAUCRATIC COMPONENTS?
Karmen also points out that students of bureaucracy have observed that agencies principally look after their own interests. Official actions are typically self-serving. Police administrators are most worried about what is in the best interests for their department and profession. Prosecutors are concerned about their own futures and the well-being of their branch of government. Corrections departments are most interested in maintaining order within prisons and making their jobs tolerable.
Karmen indicates that like all bureaucracies, criminal justice agencies are subject to goal displacement. The men and women at the top may replace unofficial goals, like minimizing strain and maximizing both personal and group rewards, for the officially stated goals of serving the public interest and assisting victims. Goal displacement takes place most readily, in situations where decision-makers exercise vast discretion, without apprehension that their hidden agenda will be unearthed and that they will be punished. Criminal Justice officials often face strong pressures to depart from various stated purposes and dispose of cases in ways that conceal their errors, lighten their workloads, and curry political favours.
Karmen states that criminal justice officials have no incentive to act in accordance with the wishes and needs of victims, as they are not directly accountable to them, either legally or organizationally. Official priorities are to attain high levels of productivity and to maintain smooth coordination with other components of the system. Victims are viewed as a resource to be drawn on, as needed, in pursuit of organizational objectives that are usually only incidental to the satisfaction of the interests of the individual victims. In every day operations, whenever minor inconveniences to insiders (prosecutors, judges, defense attorneys) have to be balanced against major inconveniences to outsiders (defendants, victims, witnesses) insider interests always prevail.
If criminal justice agencies and officials perform in ways that chiefly serve their own interests at the expense of victims, then there is a basis for uninterrupted conflict between the numerous competing parties. Any victories won by the victims must come at the cost of the privileges and benefits at present enjoyed by the police, prosecutors, judges, and parole boards. Any empowerment of victims may threaten the discretion enjoyed by officials anxious about with looking after their own interests. Procedural reforms, such as granting victims a greater role in the setting of bail, negotiating of plea bargains, fixing of sentences, or determining who gets paroled or not, are subject to co-optation (efforts to return power relationships to their former configuration).
DOES THE SYSTEM SERVE THE WEALTHY AND POWERFUL?
The criminal justice system is a powerful arm of the state. The question of whose interests are served by the system can’t be answered separately from the larger question, “whose interests does the government protect?”
According to Karmen, a radical, critical view is that the state serves the interests of the wealthy and powerful more devotedly than those of any other groups, coalitions or movements. In particular the criminal justice system operates in ways that fortifies the control of giant corporations and rich people over other classes and constituencies in society.
Karmen is of the view that the policies of the men or women at the summits of the criminal justice machinery help to promote an ideology that buttresses acceptance of the status quo and undermines support for movements looking for greater social, political and economic equality. The strategy of top officials is to encourage people that the system is shackled by misguided rules that force them to neglect deserving victims but “coddle” undeserving criminals. This ruse works extraordinarily well in one respect: it deflects the discontent of “decent, hard-working, law-abiding taxpayers” away from the wealthy and powerful above them, who, it can be argued, are to blame for the social problems that plague most societies today and redirects or misdirects anger and frustration toward troublemakers below them. The formula that top criminal justice officials follow is straightforward enough: concentrate public concern and resources on predatory street crime, committed primarily by the impoverished and desperate; simultaneously, diverting attention away from the reckless lawlessness of those at the pinnacle. The systems ineffectiveness makes more sense if it is assumed that the policies of the police, courts, and prisons are designed to fail (to reduce street crime) rather than be successful. Such failure is in fact a successful accomplishment of the systems mission–to maintain a visible, frightening “criminal class” recruited from the ranks of marginal sectors of the population and then “schooled” and “hardened” in juvenile institutions and prisons. If crime victims grow bitter and antagonistic because of unsatisfied needs, then the system has satisfied its function. It has set individual against individual, social stratum against stratum, generation against generation, females against males and often race against race. People and groups who ought to be united find themselves divided. They are furious with one another, rather than with the conditions that generate street crime.
Karmen says that the criminal justice system may serve the wealthy and powerful in an additional manner. It is “their” system to use against “their” opponents. The rules that apply to street crimes and criminals also preside over the handling of dissidents. Laws relating to searches for evidence, bail, trial procedures, prison conditions, and the unleashing of police authority are applicable to political enemies just as they are to “common criminals”. The inadequacies of the criminal justice system in its fight against street crime incite public alarm and disgust. In reaction, appeals are issued to strengthen the forces of law in order in the “war on crime”. But as part of a package deal, the control of the government over its people is tightened at the same time. Crime-fighting can become intertwined with political repression. In the name of convicting more criminals to satisfy more victims and to make the streets safer, vital due process guarantees and civil liberties may be weakened or even nullified. Under the guise of cracking down on street crime, the wealthy and powerful can prosecute and imprison those who challenge their right to rule society. If the radical critical role view is correct then it is understandable why most victims find themselves neglected or abused by the criminal justice system. The service it provides them as clients or consumers is unsatisfactory because it is not designed to operate for their benefits and is not chiefly accountable to them. It serves other masters.
With crime on the increase worldwide and a need for justice in our communities, we as responsible members of society and for some of us the justice community to ensure that our justice systems protect and act for the most vulnerable members of our communities. THE VICTIM’S