What can we expect from a criminal justice system?

The Lao People’s Democratic Republic (the ‘Lao PDR’, or simply ‘Laos’) is currently undertaking major legislative reform. One of the most momentous projects is the drafting of a new Penal Law, to replace the current Penal Code.

The very first article of the draft Penal Law sets out the objectives of the new law. Mindful of the fact that the existing translation, from the original Lao version, is unofficial, it is pointless to quote directly from the translated version. In broad terms however, the draft suggests that the function of the Penal Law will be to safeguard the political, economic and social system of the country, as well as the legitimate interests of the state, citizens and organisations. The new law is also envisaged to protect life, health, and freedom, as well as national security and public order. Finally, and perhaps not surprisingly, the Penal Law is meant to prevent and respond to criminal offences.

All this got me thinking - what can we reasonably expect the criminal law, and by extension, the criminal justice system, to deliver? 

Just glancing at some criminal codes from other jurisdictions, one quickly realises that Laos is not alone in having very high expectations in terms of what the criminal law can and should do for us. Many modern codes are slightly more cautious in their ambitions, and restrict themselves to things like preventing crime, punishment and rehabilitation of offenders. But the kind of social, political and economic goals, to which the Lao draft refers, are not at all uncommon. 

So why does all this matter? Are these not just grand statements in the preamble that are meant to sound good when quoted? Are these not the bits of a statue that we all skip over as we search for the technical clauses that are relevant to the particular case we are working on?

I think it matters for at least one reason; the objectives that we set out for our criminal law, and for our criminal justice system as a whole, informs our expectations and sets the benchmarks for future appraisal of the system’s effectiveness. 

When I asked myself, what I expected from a criminal justice system, my immediate response was that I wanted it to help people to live a life in which they did not have to resort to crime. But then a good and very wise friend of mine challenged me - is that a reasonable expectation? Just imagine the wide range of complex factors that have a bearing on crime in a society. Criminologists have some idea of what the most basic factors are; for instance, we can prove the strong correlation between crime rates and economic inequality. But cultural, historical, and other far less quantifiable factors clearly play a major role. Japan has one of the lowest crime rates in the world, yet few people would argue that this primarily is a result of a highly effective criminal justice system. In fact, even if one were to remove all institutions of criminal justice overnight, the Japanese would continue to be exceptionally law abiding. The almost total absence of looting, abuse and violence following the 2011 earthquake and tsunami is a phenomenon worth contrasting with the breakdown of law and order that typically follow similarly calamitous disasters elsewhere. 

The point here is that the criminal justice system probably only has a very marginal effect on the amount and severity of crime in a society. If that is so, are we not asking too much of the system when we ask it to control crime rates, let alone the more aspirational objectives we see in some criminal codes?  

So what then, one may ask, what does it matter if we have too high expectations on the criminal justice system? It seems to matter when it comes to how we respond to crime, as well as to other social issues, which we hope the criminal justice system will address for us. In many countries in which I have worked, there is a strong perception, among the public, that crime is on the rise. Leaving aside the issue of how well founded that perception is (given the often very unreliable data around crime), the immediate response, is often to (a) blame the criminal justice system for being ineffective and (b) strengthen certain visible components of the criminal justice system. The slogan ‘tough of crime’ is one which politicians all over the world have been quick to adopt. More resources to law enforcement, ever more draconian powers to law enforcement agencies, harsher sentences, more prisoners, and in some countries even more executions - this response pattern can be seen all  over the world. At the same time, the many other (and often more important) factors that contribute to the real (or perceived) rise in crime are typically overlooked. 

So, the reason why unrealistic expectations on the criminal justice system are problematic is because they cause us to respond to crime in the wrong way - we end up thinking the system can fix predicaments, over which it actually has relatively little influence. It reminds me of how, for a long time, we sought to address obesity, primarily by limiting the amount of fat that people consumed. The results were not successful. Later research then revealed that fat intake was but one relevant factor, and that other factors actually contributed far more significantly to obesity.

My wise friend, with whom I had an exchange a few days ago, suggested that all he wanted was that whenever there was a transgression of the criminal law, the criminal justice system should provide a restorative remedy to the parties involved. Nothing more, nothing less. The point here is that we ought to appraise the criminal justice system by how well it meets the needs of the parties in a case. We should look at how cases flow through the system, what the outcomes of those cases are, and how the parties are treated in the system. These are things that the criminal justice system has control over, and which it therefore can be held accountable for. But when we demand that the criminal justice system save us from political turmoil, economic demise, and rising crime rates, then we are not only setting it up for failure, we also risk tricking ourselves into believing that we can solve all those problems by having more police, more courts and more prisons. 

Contributed by Marcus Baltzer