10. Inequalities and criminal justice

The book consists of the keynote papers delivered at the 2012 WG Hart Workshop on Globalisation, Criminal Law and Criminal Justice organised by the Queen Mary Criminal Justice Centre. The volume addresses from a cross-disciplinary perspective the multifarious relationship between globalisation on the one hand, and criminal law and justice on the other hand. At a time when economic, political and cultural systems across different jurisdictions are increasingly becoming or are perceived to be parts of a coherent global whole, it appears that the study of crime and criminal justice policies and practices can no longer be restricted within the boundaries of individual nation-states or even particular transnational regions. But in which specific fields, to what extent, and in what ways does globalisation influence crime and criminal justice in disparate jurisdictions? Which are the factors that facilitate or prevent such influence at a domestic and/or regional level? And how does or should scholarly inquiry explore these themes? These are all key questions which are addressed by the contributors to the volume. In addition to contributions focusing on theoretical and comparative dimensions of globalisation in criminal law and justice, the volume includes sections focusing on the role of evidence in the development of criminal justice policy, the development of European criminal law and its relationship with national and transnational legal orders, and the influence of globalisation on the interplay between criminal and administrative law.

According to the federal system of government, the federal (i.e. national) government and the government of each one of the 50 US states has independent authority to enact criminal laws applicable within the territory of its jurisdiction. Also, each state has the authority to enforce criminal laws through its own criminal procedure laws, through its own criminal law agencies. Thus, in many respects, there are 51 different criminal proceedings, one for each state and one for the federal jurisdiction. Fifty second jurisdiction is secured by the decision of the US Congress (Amendment XXIII to the US Constitution) to treat the District of Columbia separately, which has a separate criminal code and criminal procedure code that are separated from those applicable in federal criminal laws across the country. In many areas where both federal and state governments have the authority to regulate an area, the federal system dominates. Federal law is the basic source of law and the vast majority of all enforcement proceedings are introduced into the federal structure (administrative or judicial). Similar dominance is not found in the sphere of criminal law. Using any of the traditional standards to measure its share of the national criminal justice system, the federal criminal justice system is nothing more but one of many. The presence of 52 different criminal proceedings would be less significant if these proceedings were the subject of a single act prescribing one exclusive, comprehensive regulation for all 52 jurisdictions. Contrary to the impression sometimes conveyed by constitutional experts, the US Constitution is not such an act. This does not challenge the characterization of federal constitutional law, as interpreted by the US Supreme Court, as “the most important source of criminal procedure law”. It is the only source of criminal justice provisions applicable in all 52 jurisdictions. It “closes” 52 jurisdictions into a basic procedural structure that guarantees uniformity in majority of comprehensive principles in different procedures. The U.S. Constitution, for many aspects of criminal procedure, also requires the application of special standards (sometimes quite detailed) that implement those standards. Nevertheless, the obligations imposed by the US Constitution are not extensive or exclusive enough to place the law of individual jurisdictions on a relatively insignificant role in regulating criminal proceedings. For many aspects of criminal procedure, the laws of individual states provide much more than the standards from the US Constitution. Even where the US Constitution is dominant, the “local” law of one jurisdiction often still plays a significant role. Of course, wherever the law of one jurisdiction has control, there is always the potential for variations in the content of the law from one jurisdiction to another.

The purpose of the research is an attempt to prove the independence of criminal procedure law in relation to criminal law. However, in the course of research, the authors were confronted with the fact that the traditional approach based on legal positivism does not allow one to distinguish other criminal procedural law, except for criminal law. However, a similar understanding of law and process does not allow to reveal their ability to resolve conflicts. In this regard, in the study, the authors turned to the methodology developed by modern hermeneutics, using the communicative theory of law as the main method for studying criminal procedure law, where law acts as a means of interaction between people, which sets the boundaries for such interaction, which made it possible to look at the criminal process as a way communications. In the process of such communication, conflicts arising in society that are basically criminal in nature are resolved. In the field of criminal proceedings, this allowed to say, if the case concerns a criminal law conflict, then we should not talk about the emergence of criminal law relations. Based on that, the authors conclude that the criminal procedure law is independent. This follows, first of all, from the fact that the process does not boil down to the application of criminal law, but performs the function of resolving conflicts and can well do without applying a specific norm of the Criminal Code of the Russian Federation, for example, in case of reconciliation of the parties (Article 25 of the Code of Criminal Procedure of the Russian Federation) or in connection with compensation for damage (Article 28.1 of the Code of Criminal Procedure). The authors conclude that criminal law is the legal means of institutionalizing possible social conflicts, and the criminal process is a form of resolution. Thus, the fact of committing a crime is losing its significance; instead, the conflict that has come to the fore is highlighted. Moreover, the process serves only as a form of conflict resolution, which translates it into a legal channel. Without criminal law, procedural procedures lose all meaning, which, however, does not put the process in a subordinate position with respect to law. Based on the functional load of law as a form of resolving social conflicts, the authors conclude that the process is functionally designed to resolve them. At the same time, the application of the criminal law norm as a result of procedural activity loses all meaning. Instead, the fact of resolving the conflict, which may occur, for example, in reconciliation of the parties, is of importance. Thus, the criminal procedure form is functionally designed to resolve criminal law conflicts arising in society.

Early in the 1980s, a new category of crime appeared in the criminal law lexicon. In response to what was said to be an epidemic of prejudice-motivated violence, Congress and many state legislatures passed a wave of “hate crime ” laws that required the collection of statistics and enhanced the punishment of crimes motivated by certain prejudices. This book places in socio-legal perspective both the hate crime problem and society’s response to it. From the outset, Jacobs and Potter adopt a sceptical if not critical stance. They argue that hate crime is a hopelessly muddled concept and that legal definitions of the term are riddled with ambiguity and subjectivity. Moreover, no matter how hate crime is defined, the authors find no evidence to support the claim that the US is experiencing a hate crime epidemic--nor that the number or rate of hate crimes is at an historic zenith. Furthermore, assert the authors, the federal effort to establish a hate crime accounting system has been a failure. The authors argue that hate crime as a socio-legal category represents the elaboration of an identity politics that manifests itself in many areas of the law. However, the attempt to apply the anti-discrimination paradigm to criminal law generates a number of problems and anomalies. The underlying conduct that hate crime law prohibits is already subject to criminal punishment. Jacobs and Potter maintain that there is no persuasive rationale for saying that hate crimes are “worse “ or “more serious “ than similar crimes attributable to other anti-social motivations. Also, they argue that the effort to single out hate crime for greater punishment, in effect, is an effort to punish some offenders more seriously because of their bad beliefs, opinions, or values, thus implicating the First Amendment. Jabobs and Potter show that the recriminalization of hate crime has little (if any) value with respect to law enforcement or criminal justice. Indeed, enforcement of such laws may in fact exacerbate intergroup tensions rather than eradicate prejudice.

Criminal Procedure Code of Russia: Twenty Years Later (2001–2021)

Violence, Criminalization & Punitive Excess

This chapter discusses the process of criminal law. The focus is on the importance of the exercise of official discretion, on the criminal law in action, and on the role of bureaucracy in criminal law. There is also an outline of sentencing powers. Patterns of decision-making by criminal justice officials are one of four key pillars of criminal law and justice, along with criminal law principles, rules, and standards. We will see how these patterns are structured by crime management and bureaucratic-administrative techniques designed to reduce the number of contested trials and issues, and hence take pressure off the criminal justice system as a whole.

This chapter explores the relationship between criminal law, criminal process, and human rights from a slightly different perspective. It seeks to demonstrate that while human rights may well be used to limit the excesses of security and law and order politics, the nature of the relationship between human rights and criminal justice cannot be captured alone by the view of rights as a limit on the coercive reach of the criminal law and criminal justice institutions. The chapter is organized as follows. It starts by outlining key areas where positive rights claims have shaped the criminal law and criminal justice process. It then examines the relationship between positive rights and coercion, and critiques the language used to frame certain positive duties. Finally, the right to security is used as a case study through which to demonstrate the concerns raised by the development of coercive duties.

Ending unjust HIV criminalization: leave no-one behind.

State Mental Health Policy: Mental Health Transformation: Moving Toward a Public Health, Early-Intervention Approach in Texas

The article reveals the essence and general trends of humanization of criminal procedural legislation and its institutions. It is emphasized that in scientific sources, quite a lot of attention is paid to the grounds and directions of humanization of criminal legislation and there are very few publications in the special literature devoted to the features and general trends of humanization of criminal procedural legislation. It is concluded that “humanization of legislation” is a socio-legal phenomenon and a process that today covers not only criminal law, but also all other branches and institutions of public law, among which the criminal procedural law of Ukraine occupies a special place. It is found out that humanism is a multifaceted phenomenon that is used in the following meanings: 1) as a certain worldview (scientific, religious, ideological, etc.), which can manifest itself not only at the level of ideas (in the form of scientific concepts), but also in the material world (in the results of creative activity, etc.); 2) as a process of transformation in a certain sphere of social life (for example, humanization of criminal liability); 3) in the form of features of interaction and mutual relations of people among themselves and of subjects of public authority with individuals; 4) in the form of moral qualities of a person, which are often taken into account in law-making and law enforcement activities. It is proved that the concepts of “humanization of the criminal process”, “humanization of criminal procedural law” and “humanization of criminal procedural legislation” are closely related in content, but this does not mean that they should be completely identified. It has been established that the humanization of criminal procedural legislation loses the meaning of its existence in cases when it begins to have a destructive (negative, ineffective, socially harmful) effect on the solution of the tasks set for criminal proceedings and on the achievement of its goals. That is, the tasks and goals of criminal proceedings are the criteria by which one can determine the boundaries of the introduction and implementation of humanistic philosophy in criminal procedural activity, in criminal procedural law and criminal procedural legislation. Using the example of the institute of alternative (extrajudicial) methods of conflict resolution in criminal proceedings, the features of the humanization of modern criminal procedural legislation of Ukraine and its individual legal institutions – the institute of mediation, participants in criminal proceedings, amicable agreements, court decisions, etc. are revealed.

Over the past years, domestic criminal and criminal procedural legislation has undergone significant changes aimed at improving its norms, implementing advanced international standards and foreign practices in order to unconditionally ensure the rights and freedoms of citizens involved in criminal proceedings. At the same time, a number of problems and shortcomings remain in the judicial and investigative practice, including those caused by the imperfection of certain norms of criminal and criminal procedure legislation, which hinder the effective implementation of the country's criminal law policy. Therefore, the study of the most important issues of the relationship between criminal and criminal procedural law has become especially relevant and timely, especially since many facets and levels of the relationship between substantive and procedural criminal law are completely new and do not yet have an unambiguous solution. This explains the choice of research objective in this article: to reveal the essence and identify the characteristic features of criminal law and criminal procedure law; study of various aspects, forms and levels of the relationship between criminal and criminal procedural law. Scientific novelty lies in the author's approach to determining the relationship between criminal and criminal procedural law.

The author states that modern social development is based on humanistic ideas, which underpin the policy for the liberalization of modern criminal and criminal procedure legislations, and analyzes the corresponding amendments to the Criminal Code and the Criminal Procedure Code of the Russian Federation. This analysis proves the relevance of researching the methodological foundations of determining the goal of Russian criminal proceedings. As philosophy teaches us, the goal of any activity is determined by external factors and should thus be derived from them. At the same time, the organization of the work of actors «within» the system presupposes setting corresponding goals. Applying the logic of scientific cognition «from general to specific» to the criminal process, the author proves that it is necessary to initially determine its purpose at the highest possible level of generalization. After that, the purpose should be interpreted in practical terms, i.e. it is necessary to set the goal and objectives of criminal proceedings. It is noted that the purpose of criminal proceedings - protection against criminal infringements - determines the goal of criminal procedure activities - the implementation of this protection. Such are the dialectic features of the goal manifested in the combination of specific and general characteristics. At the same time, a goal needs to be specific enough, and not too general. The author supports the approach of the lawmakers used in Part 2, Art. 2 of the Model Criminal Procedure Code for the CIS countries, which determines the results that the bodies responsible for criminal procedures should strive to achieve. It is stated that in the countries of the Romano-Germanic legal system the goal of criminal court proceedings is considered to be reached if the guilty party is determined and the just criminal law norms are applied to this party in the form of punishment, whereas in the Anglo-Saxon legal family the goal of criminal proceedings consists in settling the conflict between the victim and the perpetrator. Besides, the author proves that the objectives of criminal court proceedings reflect the specific features of criminal procedure instrumentarium, while the results of reaching their goals are of criminal law nature since they are determined by the factors that are external in relation to the criminal proceedings. Based on this, the author presents the formulation of the goal of criminal proceedings as well as the results of reaching it.

In England and Wales, Section 146 of the Criminal Justice Act 2003 made disability hate crimes legal. This advocated for increased sentencing for perpetrators whose crimes were motivated by or demonstrated hate against a person with a handicap or a perceived disability. Currently, this additional sentencing provision is the only legal option for prosecuting disability hate crime perpetrators. This thesis explores the experience and aftermath of hate crimes committed against England’s cognitively challenged senior victim group. The cognitively challenged elderly victim group is far more likely to face bias and violence; they have a greater likelihood of re-victimisation and suffer significant suffering as a result of hate crimes. To date, the voices of cognitively deficient elderly victims and survivors have been mostly absent from scholarly research and hate crime policies. As a result, the purpose of this article is to look into present policy barriers and how the cognitively challenged senior victim group might best receive support, justice, and interventions following discriminatory hate crimes. There has been little examination and discussion of intersectionality in disability studies and hate crime research. Common ideas fail to adequately reflect the multifaceted, overlapping, and complex experiences of danger and victimisation. This paper builds on studies on hate crimes against the cognitively deficient elderly victim group. It noted the challenge of categorising individual encounters as one type of hate crime. Victims and their relatives recognised that they were targeted for a variety of reasons, including their inability to care for themselves and their age. The study contends that the present strand-based approach to hate crime conceals a multitude of cross-identity characteristics that, when combined, might raise the danger of victimisation while decreasing a victim’s chance of reporting their experiences. To address vulnerability, safety, and hate crime against disabled people in England and Wales’ criminal justice, health, social care, and refuge systems, barriers to including the cognitively impaired senior victim group in the policy process are presented, allowing for targeted suggestions and changes on relevant issues.

Prelims