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1st Principles: JUSTICE

1st Principles: JUSTICE. Victor Finkel. Topics:. That we should elect our judges That we should bring back the death penalty That we should have mandatory sentencing for repeat offenders That we should abolish trial by Jury That paedophiles should be forced to wear tracking devices

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1st Principles: JUSTICE

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  1. 1st Principles: JUSTICE Victor Finkel

  2. Topics: • That we should elect our judges • That we should bring back the death penalty • That we should have mandatory sentencing for repeat offenders • That we should abolish trial by Jury • That paedophiles should be forced to wear tracking devices • That we support at-home detention for juvenile offenders

  3. The CJS

  4. AIMS of the CJS • Prevent Crime • Make Society Safe

  5. AIMS of the CJS • Punishment / Retribution • of the criminal / for society & the victims • Protection of Society • From repeat offences • Deterrence • Of similar acts • Rehabilitation • Of the criminal • PROPORTIONALITY • A useful concept for examining these with reference to other legislation

  6. Balancing the Aims • Do the Aims ever Clash?

  7. Balancing the Aims (2)

  8. Balancing the Aims (3)

  9. Balancing the Aims (4) • What about the Dealth Penalty? • Reality of Deterrence is that it is limited • Rationality • Incrementally Different

  10. Balancing the Aims (4) • Most debates about Criminal Justice are about balancing these aims. • This means • showing the impact of the policy on each of the aims AND • Explaining which particular aims are more important in this case and WHY. • Eg: “That convicted paedophiles should be forced to wear tracking devices for the rest of their lives”

  11. GOING TOUGH ON CRIME • This section is about how to take the Punishment/Retribution and Protection side first and foremost. • Two things need to be done: • Show why punishment is necessary • Show why punishment is proportional and appropriate

  12. The Rights of Criminals • Criminals lose rights • Presion: Freedom of association, of speech, of movement, of voting (in some countries) • Though no one loses all • Right of appeal, to a fair trial, adequate representation, freedom from torture • How justify taking away? • Note: Once taken away, very few people out there advocate bringing them back!

  13. Concept: The Social Contract • Where do rights come from? • Social Contract Theory: • Rights are a construct of a contract • We give up rights to do whatever we want • In exchange for protection from people doing whatever they want to us

  14. Harsh Punishment: Proportionality • Devastating Impact on Individual Victims • Rape, Murder, Paedophiles • How deal with offences such as Drug Trafficking, Property Crime, where impact on individuals may be lesser? • Answer: Devastating Impact on Society • eg: “That we should have the death penalty for drug traffickers”

  15. Harsh Punishment: Neccessity • Establish a problem that needs fixing • Issue: Crime rates are falling in most developed countries • Answer? Lie? NO! • PUBLIC PERCEPTION

  16. Public Perception • Feeling unsafe inhibits ability to excise rights • When justice appears inadequate people take justice into their own hands - Vigilantes • Concentrates crime due to demographic change (Sometimes) - Broken Windows Theory e.g. New York

  17. GOING SOFT • How to focus on Rehabilitation • Why matters?

  18. Combating Perceptions • Numbers: Crime Rates are falling across Australia and most parts of the developing world • Soft: Prison population is rising and for some crimes incarceration rate is increasing. And not getting off lightly either - 96% of Murderers, average >18 years in jail • Judges out of Touch: When people know the full facts of the case, are often more lenient than judges - Melbourne Uni Study

  19. Rehabilitation reduces Crime! • It works - example: Victoria • It reduces suffering associated with future crimes • Saves government extremely high costs of incarceration (people in prison)

  20. We need Rehab to work!

  21. Where does Rehab Work Best? • How does Rehab work? • Changing Mindset • Where does this work best? • Prison programs • Diversionary Centres • Community Outreach

  22. Factoid: SENTENCING • Our system preserves significant judicial discretion in sentencing • Safeguard • To meet aims of justice system, each person needs to be dealt with differently • “Tough on crime, but also tough on the causes of crime.” • Factoid-within-a-Factoid: Victim Impact Statements?

  23. Factoid: LAWYERS • The Australian legal system is ‘ADVERSARIAL’ • This means that judges and juries can only decide on what is presented to them in the court. • Thus, Lawyers are crucial • There is such a thing as a good lawyer and bad lawyer -> what does this say about our Justice system? • Alternative: INQUISITORY

  24. Factoid: JURIES • Most serious felonies are tried by Jury • Panel of 12 “Average Reasonable People” called to serve • Panels are vetted by lawyers • Role of Judges: • direct juries on matters of law and inadmissable evidence. • Set the sentence • Why do we have Juries? • Are juries an accurate reflection of society?

  25. Factoid: LEGALISING vs DECRIMINALIZING • LEGALISING • Totally acceptable • No related offences • Benefits: Frameworks, government standards • DECRIMINALISING • There’s not really a legal process • BUT, focus on the ‘actual’ criminals • Benefits: Keeps it illegal, but doesn’t stomp on the pawns • Example “That we should decriminalise the act of prostitution”

  26. Factoid: PRISONS • Are prisons effective at Rehabilitating people? • Isolation from Society • Bad Influences

  27. Factoid: YOUNG PEOPLE • Minors are treated differently by the law • <10, cannot be criminally liable • 10-14 in between • 14 - 18 can be held criminally liable • Emphasis on Diversion • Concept: Labelling • Juvenile Detention as Last Resort

  28. Factoid: VOTING • In Australia: • You cannot vote while in Prison • However, you can vote if you are a convicted criminal, just not in prison, or have been released • Thus, whether you lose the right to vote or not is up to random chance for shorter gaol sentences. • In America • ?

  29. Factoid: POLICING • Significant operational discretion is utilised • Why? • Harms of Discretion • Zero Tolerance • Community Policing

  30. Factoid: HOW DO SOCIETIES DECIDE WHAT IS A CRIME • What constitutes a crime is a relative concept • Between societies • There are some common crimes • There are some different crimes • And some change with time • CLASH is UNIVERSAL RIGHTS vs MORAL RELATIVISM

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