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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