Criminal Law, Equity and Justice Flashcards
(23 cards)
What are the two views of equality in the criminal justice system?
- Equality before the law exists, making the system just
- Inequality is built into criminal law and the criminal justice system
A third view attempts to avoid questions of equality by focusing on risk.
What are the three arms of the criminal justice system?
- Investigative arm (Police and Prosecution)
- Adjudicative arm (criminal courts, prosecution, court officials)
- Correctional arm (Corrections, probation services, Prisoners Review Board)
Each arm operates independently, although there are interactions between agencies.
What are the obligations of prosecutors in the criminal justice system?
- Ensure a defendant is not unfairly disadvantaged
- Uphold the integrity of the Court and the system
- Act with transparency and accountability
- Disclose evidence in Court
Prosecutors are seen as agents of the State and the community.
What are the differing goals of different parts of the criminal justice system?
- Efficiency in investigations and charges
- Preventing abuses of State power
Different agencies may prioritize these goals at different times.
What are the two models of criminal justice according to Packer?
- Crime Control model
- Due Process model
Crime Control focuses on efficiency, while Due Process emphasizes accuracy and legal procedures.
What is the role of discretion in the criminal justice process?
- Actors and agencies can decide to continue or end an accused’s process
- Decisions can be made to vacate or divert a criminal case
Discretion is an important element at each stage of the process.
What is the presumption of innocence?
The requirement that the State must prove that an accused committed all legal elements of the crime beyond a reasonable doubt.
This principle is heavily biased in favor of the accused.
What is ‘over-policing’?
Targeting specific groups or sections of the community, often seen as harassment.
Indigenous Australians are frequently over-policed due to historic factors.
What are some reasons for differential policing of Indigenous Australians?
- Visibility as a group
- Minority status
- Historical antagonism
These factors contribute to ongoing tension and higher rates of surveillance.
What is ‘under-policing’?
The failure of police to respond to instances of violence against certain vulnerable groups.
Historically, this includes domestic violence, homophobic violence, and racist violence.
Why do many defendants plead guilty in court?
- To finalize the process
- Court processes are confusing
- Discounts on sentences for early guilty pleas
- Shame and embarrassment
- Better use of public resources
87% of defendants plead guilty.
What is ‘substantive equality’ in sentencing?
Sentences should be proportionate to the seriousness of the offence and the culpability of the offender.
Culpability refers to the degree of blameworthiness.
What are the elements or values of sentencing?
- Proportionality
- Parsimony
- Totality
- Consistency
- Individualised Justice
These elements ensure fair and just sentencing practices.
What is the principle of proportionality in sentencing?
The sentence should be reasonable in light of the crime and circumstances.
Severity of the sentence should match the harm caused by the offender.
What does ‘parsimony’ mean in the context of sentencing?
Judicial officers should impose no more severe a sentence than necessary.
This principle restrains the power of the State in sentencing.
What is the principle of totality in sentencing?
Applies to sentencing for multiple offences, ensuring sentences are served concurrently.
This prevents excessive punishment.
Why is consistency important in sentencing?
Lack of consistency erodes public confidence in the criminal justice system.
Similar cases should be treated alike to maintain deterrent effects.
What does individualized justice entail?
Courts consider all facts and relevant matters to determine appropriate sentences.
Sentencing should always be discretionary.
What are the three types of laws addressing wrongdoing?
- Criminal offences (e.g., murder)
- Regulatory offences (e.g., environmental damage)
- Private or civil wrongs (e.g., torts)
Not all illegal acts are classified as criminal.
What is a key critique regarding acts classified as criminal law?
Many criminal offences are not harmful to society, such as minor public order offences.
More harmful acts like fraud may not be adequately addressed.
What is the risk approach to crime?
Analyzes statistical probability rather than making legal judgments.
It seeks to replace subjective elements of the criminal justice system.
How does risk surveillance affect at-risk populations?
Targets groups of factors rather than individuals, legitimizing government surveillance.
This can lead to disproportionate targeting of the disadvantaged.
What is the impact of moving to a risk-based approach in criminal justice?
It does not resolve issues of equality in the criminal justice system.
It shifts the problem from the CJS to other forms of intervention.
