Thursday, April 4, 2013

Punishment and justice: Can they exist in an unjust world?


Abstract
In theory, the justice system is a system that is exactly that, just. However, since society does not exist in a vacuum, the penal system is capable of being influenced by a variety of sources. Individuals bring with them their personal beliefs, experiences, thought processes, and at times, biases. Whether conscious or not, the biases people possess have the ability to alter the life of many people. So, how can a system that is in place to ensure fairness and equal treatment, have so many variables that could potentially lead to a miscarriage of justice? However, not all the issues stem from the judicial system, nor those who enforce the regulations, as some of the literature in the following paper suggest that with such a high rate of incarcerated individuals who also have mental health issues, perhaps the approach to punishment should take a more “person-centered” approach, taking into account the mental capacity and possible illnesses that may be present prior to the crime being committed. The following paper will attempt to address both sides of the judicial process, including some possible suggestions to address the faults identified.
A brief history of the judicial system
            In order to fully appreciate the power and transformation of the judicial system, it is important to know the origins, as it is quite different from the present day system in place. The judicial process varies from location to location, with different countries having vastly different acceptable practices, which further complicate the quest for justice. The judicial system of the United Kingdom is actually comprised of three different and distinct legal jurisdictions, each with its own system in place. The three jurisdictions include English Law, Northern Ireland Law, and Scots Law. In the United Kingdom, the history of the legal process is traced back over 1000 years ago, when one of the biggest problems the judiciary system had was finding out who had killed a deer that had belonged to another person (http://www.judiciary.gov.uk), which proved just as challenging to come to a conclusion as the present day legal problems presented in the variety of UK court systems.
            In contrast to the UK judicial system, the United States legal system, while having different branches, is fully interconnected, working at the federal, state, and local levels. Under the Constitution of the United States, a main guide to the legal and political culture, there is to be but one court (the Supreme Court), which protects the right to trial by jury (http://www.constitution.org/constit_.htm). However, the jury is made up of members of society, who may bring their own personal biases, thus not ensuring a just examination of the facts as presented.
There have been some improvements in the sometimes archaic UK judicial system, such as The Criminal Justice Act of 2003, which aimed to bring the judicial system up to date, reflecting a more accurate picture of what happens within the system. The Act was the biggest change in at least 50-years to the legal process, with an aim to deliver justice in a more consistent manner (Aguado, 2007). One of the key conditions that changed with the implementation of the Act was that the court now had a condition it needed to fulfill when imposing sentences, namely that it was up to the court to prove that the offender posed a significant risk to members of the public. Thus, in theory, the Act would bring a more fair approach to conviction and sentencing requirements. However, the veil of fairness is tainted by the lack of clear definition of “significant risk,” as it pertains to the offender and the safety of the public at large. Additionally, the Act states that the Court must not impose a sentence unless they are satisfied that the seriousness of the offense matches the level of the crime committed (Aguado, 2007). After implementation of the Act, whose aim was to increase sentences as a method of deterrence, the prison population in the UK had skyrocketed, thus possibly not supporting the hypothesis of a deterrent effect.
Penology and punishment
Dating back to the Greek civilizations, there were mentions of punishments, and even in the religious textbooks, there is mention of “an eye for an eye” possibly alluding to the importance of the punishment fitting the crime. Penology is, in essence, the study of punishments and the institutions, such as prisons. It also includes the justifications and a study of the possible ramifications to both society and the incarcerated alike. Penologists also study the effect incarceration has on the individual, the possible rehabilitation potential, and devising methods to reduce recidivism (Scott, 2008). Since penology is considered a theoretical discipline, thus requiring the ability to think rationally about the larger scheme of things, and the ability to consider the historical and social contexts of crimes committed. It also requires the ability to think in “what if” scenarios, without letting personal bias taint the route taken. Placing oneself in the position of the incarcerated is one way to gain insight into the possible punishments levied against those accused of committing a crime. Viewing punishments from two points of view generates two different, yet important paradigms of punishment, consisting of the Paradigm of Legal Punishment, and the Paradigm of the Conscientious Punishee (Adler, 1992).
When considering punishments, penologists have five important rules to guide their decisions. The punishments must:
·       Create human suffering;
·       Arise as a direct result of the perpetration of an offense;
·       Only be directed at the person who undertook the offense;
·       Be the intentional creation of other humans in response to that offense; and
·       Be inflicted by an authority body representing the embodiment of the rules or laws of the society in which the offense was committed (Scott, 2008).
Penologists also are tasked to consider the possible outcome of the punishment on the likelihood of future crimes committed, either by the same individual at a later time, or others in society to whom the incarcerated is meant to serve as a warning or deterrent. One would imagine that those with the most severe sentences would be less likely to reoffend in the future; however, research has indicated that the opposite is true, with those who receive the more punitive punishment are more likely to offend at a later date (Nagin, Cullen, & Jonson, 2009). Among those released in 1996 from prisons in England and Wales, it is estimated that nearly 57% returned to prison over the next two years (Cullen & Minchin, 2000). Perhaps such a finding is an indicator of a missed opportunity to effectively rehabilitate offenders, or to address any personal deficiencies they may be experiencing.
Mental health and the penal system
            Several studies have brought to light the fact that a very high percentage of prisoners, located in both the United Kingdom and internationally, have at least one mental illness. It is estimated that out of the nearly 10 million prisoners internationally, no less than 90% have at least one mental health disorder, with up to 15% experiencing four or five different mental health problems (Gojkovic, 2010), with some of the most common comorbid, or dual diagnosis conditions include a personality disorder with alcoholism and/or drug abuse. In order to address the severe lack of support for prisoners in the penal system who experience mental health disorders, the World Health Organization published the Trecin Statement on Prisons and Mental Health (2008), which identified several key points, including:
·       A number of prisoners already have mental health problems before entering prison;
·       Prison environments are, by their nature, normally detrimental to protecting or maintaining the mental health of those admitted and held there;
·       Many vulnerable prisoners have a drug problem prior to entering prison, but a large proportion have their first drug experience in a prison;
·       Diversion schemes prior to and at the point of sentencing are often poorly developed, under-resourced and badly managed; and
·       Prisons have too often become the place used to hold individuals who have a wide range of mental and emotional disorders.
With these points in mind, it is clear that without considering the mental health of those
in the penal system, punishment can never be deemed as just. Addressing the mental health needs of those incarcerated on a global scale is a daunting task, as each region has their own issues and methods of addressing mental health care, let alone prison mental health care, thus making a one-size-fits-all approach inappropriate and insufficient. Tailoring individual treatment plans is costly, but necessary on a human level. With prisons around the globe operating at more than capacity (130% in Europe, 107% in America, and 300% in Africa), a large population of individuals in need of mental health treatment often are forgotten about, then society is surprised when the parolees reoffend (Penal Reform International, 2009). There are some common underlying causes that contribute to the lack of mental health care available within the penal system, which primarily surround a lack of trained professionals in the facility. 
        While some countries (England, Ireland, and Australia) have dedicated mental health nurses to implement treatment and administer care, other countries, even those considered to be highly developed such as the United States, have very few dedicated individuals to fill that role. In Africa, the outlook is even more grim, as there are no specific approaches to mental health care in their prison facilities, which according to the aforementioned statistic, are operating at over three times capacity (Penal Reform International, 1999). Additionally, studies have indicated that the very environment and culture that is present in a majority of prisons can affect the mental health of prisoners. This includes violence, threats of violence, and overcrowding situations (Jordan, 2010). However, one way to reduce the prison population is to impose non-custodial penalties, also referred to as punishment in the community, which allows non-violent offenders an alternative to imprisonment through fines, probation or reparation and restitution towards their victims (Cavadino & Dignan, 2007).
            In addition to the primary mental health concerns presented in the prison system, an additional, and related one has become a growing concern, namely, suicides within prisons. The prison suicide rate in the UK increased from 74 per 100,000 in 1988, to 126 per 100,000 in a ten year period. An estimated one third of those who commit suicide within UK prisons have a history of mental illness (Ashraf, 1999), and with no psychiatric intervention methods, that number is likely to rise. Suicide among the incarcerated population is between four and eleven times higher than the general population (Codd & Scott, 2010). After release from prison, the risk of suicide is still present, as prisoners who have a mental illness are more likely to commit suicide during their incarceration and within the first year following their release (Awofeso, 2010). However, some treatments have shown to be effective in preventing successful suicides. One such program, the first national suicide prevention program in England and Wales was launched in 2002, and within the 10 years after implementation, the prisons in both England and Wales experienced at least a 20% reduction of self-inflicted deaths. The program led to the revision of the Prison Service Order 2700 (HMPS, 2007), which includes a framework for support and mental health care following release from custody. With many of those incarcerated experiencing homelessness, abuse, or mental illness (Cavadino & Dignan, 2007), it is important to have a support system in place upon release, as it is likely that those within the “unproductive” category will not have access to resources upon release.
            Other than funding, there are some other commonalities that have led to the current state of mental health care within the penal system. These include ignorance about the role of a mental health professional in the prison system; preconceptions about working in such a facility; and a poor selection of qualified candidates (Brooker & Gojkovic, 2009). Among some of the reasons that those with mental illness are often overrepresented in prison settings include a deinstitutionalization of mental health services, lack of community support and resources for those with mental illnesses, the challenge mentally ill offenders face when trying to obtain mental health services, and the attitudes of police officers and society toward those with a mental illness (Lamb & Weinbeger, 1998). Perhaps an informational outreach approach would address the issues and barriers that stand in the way of providing quality mental health care to incarcerated individuals, thus in turn, lessening the cost to society in the end. The closure of many of the mental institutions have in essence, traded one set of secure locations for another, namely the penal system (Owens, 2007). However, it is important to note that the majority of individuals with mental illness do not break the law, and when they do, it is most likely to be petty in nature (Codd & Scott, 2010).
Miscarriages of justice
            An additional contributing factor to unjust punishment can be found in a growing body of miscarriages of justice. There have been several such instances in the UK, including Stefan Kiszko who served 16 years in prison after being wrongfully accused of murdering Lesley Molseed, a schoolgirl in West Yorkshire; and Susanne Holdsworth who spent three years in prison for causing the death of Kyle Fisher, a two-year-old who was in her care. In both aforementioned cases, additional evidence was discovered, leading to the conviction being overruled (Jones, 2009). However, the British government is adopting a new definition of miscarriage of justice, as it pertains to those who have been wrongly convicted. The new ruling requires claimants to prove clear innocence in order to receive any compensation, which in essence is trying to prove a negative (Laville, 2011).
            Perhaps one of the most recent and media covered miscarriage of justice was the drawn out trial of Amanda Knox, her boyfriend Rafael Sollecito, and Rudy Guede, in the murder of Knox’s roommate Meredith Kercher in November of 2007. For those not familiar with the Italian judicial system, the trial appeared to lack any sort of professionalism, with court proceedings occurring at various early morning hours, the legal team (including the judge) falling asleep during the trial, and Knox being tried simultaneously for civil and criminal charges. Additionally, the jury was not sequestered during the proceedings and deliberation, thus exposing them to biases and heresy in the media.
            However, while the handling of the Knox case seemed to contradict what is expected in most countries, it was handled according to Italian law. Differences between legal systems make punishment and justice seem eons apart when comparing the United State’s legal system to the Italian. Interestingly though, the Italian criminal procedure was updated in 1989, with parts of the United States’ adversarial system as an influence, thus making Italy’s legal system a hybrid of their traditional inquisitorial model, blended with the adversarial model (Mirabella, 2012). Many Americans would fail to recognize any semblance of similarity between their legal system and that of Italy’s, with some US citizens stating that “Italy as a country, has a confused, inefficient, and failed criminal justice system” (Leonard, 2009). Perhaps, but the way the trial was handled was in line with Italy’s criminal procedure system, and an improvement in the past method in which the trials were juryless and governed by a judge who took a prominent position in the development of evidence at the trial (Grande, 2000). After serving nearly four years of her 26 year sentence, the verdict was overturned in 2011. However, it was recently announced that the Italian Supreme Court will retry Knox for the murder (Wood, 2013).
Conclusion
            Finding justice and effective (and appropriate) punishment in what appears to be an unjust world can be a daunting endeavor. The challenges of a myriad of laws that vary from country to country, and even between jurisdictions, can deter many. However, with the few items brought to light in the previous pages can lead to a development of a fairer penal system, offering treatment and education to prevent repeat visits. Additional steps to consider involves the individuals working in the penal and judicial systems. Some legal institutions invest little time in the research and development phases when considering new plans to implement, relying on previous literature that supports their claims. It has been suggested that lawyers do a lot of legal research in law, but not about law (Galanter, 1992), which is a travesty. It is essential for those in the penal system to read a wide variety of material and think in an abstract way, which allows a new view into philosophical questions regarding criminology and social constructs (Scott, 2008).
            By paying attention to the mental health needs of those incarcerated, society will learn more about some of the causes that lead to people committing crimes, develop more effective methods in addressing a variety of mental illnesses, and assist those who were incarcerated, to become valuable and contributing members of society upon their release. It may take time and money, but the changes that have the potential to turn an unjust world into a more just one has no price, especially when fellow human beings are involved.
**References available upon request**

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