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Criminal Justice Theory Criminal Justice Theoryexamines the theoretical foundations of criminal justice in the modern era, whilst also considering legal philosophy and ethics, explaining criminal behaviour, and discussing policing, the court process and penology in the context of contemporary socio-economic debates. Throughout the book a realist theoretical thread acts as a guide interlinking concepts of social progress, conflict and carceral models of criminal justice, whilst also recognising our collusion in the creation of an increasingly pervasive culture of socio-control that now characterises contemporary society. The complex theoretical issues tackled in this book are addressed in an accessible style, making this a relevant and comprehensive introduction to criminal justice theory for students on a wide range of undergraduate criminal justice modules. It will also be a helpful guide for those commencing postgraduate studies in the disciplines of criminal justice, criminology and law. Roger Hopkins Burke is Criminology Subject Leader at Nottingham Trent University where he teaches criminological theory and juvenile justice to both undergraduates and postgraduates. His numerous publications include Zero Tolerance Policing(Perpetuity Press, 1998), Hard Cop/Soft Cop(Willan Press, 2004), Young People, Crime and Justice(Willan Press, 2008) and An Introduction to Criminological Theory(2001, 2005, 2009). Criminal Justice Theory An introduction Roger Hopkins Burke First published 2012 by Routledge 2Park Square, Milton Park, Abingdon, Oxon, OX14 4RN Simultaneously published in the USA and Canada by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business ©2012 Roger Hopkins Burke The right of Roger Hopkins Burke to be identified as author of this work has been asserted by him in accordance with the Copyright, Designs and Patent Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice:Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data Acatalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Burke, Roger Hopkins. Criminal justice theory : an introduction / by Roger Hopkins-Burke. p. cm. Includes bibliographical references and index. 1. Criminal justice, Administration of–Philosophy. 2. Criminology. 3. Corrections–Philosophy. 4. Police administration–Philosophy. I. Title. HV7419.B87 2011 364.01–dc23 2011018288 ISBN 13: 978–0–415–49096–2 (hbk) ISBN 13: 978–0–415–49097–9 (pbk) ISBN 13: 978–0–203–88051–7 (ebk) Typeset in Times New Roman by Keystroke, Station Road, Codsall, Wolverhampton For Kristan, Thomas and Oliver Contents 1 Introduction: modernity and criminal justice 1 The European Enlightenment and the rise of the modern age 1 Criminal justice in the pre-modern era 3 Social contract theory and utilitarianism 6 Modern societies 10 Four models of criminal justice development 11 The structure of this book 26 2 Explaining crime and criminal behaviour 29 The rational actor model 29 The predestined actor model 33 The victimised actor model 47 Integrated theories 51 Postscript 56 3 The philosophy of law and legal ethics 58 Analytic jurisprudence 59 Normative jurisprudence 69 Critical legal theory 74 Islamic jurisprudence and Sharia law 77 4 Policing modern society 84 Abrief history of the police 85 Policing and social context since the Second World War 95 Policing contemporary society 98 Policing and the four models of criminal justice development 107 5 The legal process in modern society 111 Criminal justice agencies 113 Criminal justice ‘system’ or ‘process’ 116 viii Contents The criminal justice process in context 117 Adversarial and inquisitorial criminal justice processes 119 Models of the criminal justice process 121 International law 133 International human rights law 141 6 Punishment in modern society 144 The purpose of punishment 145 Utilitarianism 148 Deterrence 150 Incapacitation 155 Determinism 158 Rehabilitation 159 Retribution 164 Just deserts 165 Reparation 169 Restitution 169 The politics of punishment 170 7 Youth justice in modern society 172 Young people, discipline, control 173 From justice to welfarism 176 Youth justice and populist Conservatism 182 Youth justice and New Labour 187 Reflections on the management of contemporary youth crime 190 Conclusions 192 8 Conclusions: the future of criminal justice 194 Criminal justice in an age of moral uncertainty 198 The schizophrenia of crime 199 Crime as normal and non-pathological 200 New modes of governance 201 Crime and the risk society 202 Loïc Wacquant and the government of insecurity 205 Racial inequality and imprisonment in contemporary USA 206 Four peculiar institutions 207 Carceral recruitment and authority 209 Conclusions: living in penal society 211 Contents ix Notes 215 References 222 Author index 249 Subject index 256 1 Introduction Modernity and criminal justice This is a book about criminal justice theory. Students of criminal justice and the law – and in reality other disciplines as well – are invariably overwhelmed by the word ‘theory’ which they seem to subconsciously associate with the esoteric or even the mythical and scary ‘rocket science’ with the outcome being an inherent resistance to the subject matter. Theory nevertheless in reality means ‘explanation’ and is simply about how and, most importantly, ‘why’ we do some things and in the form that we do. There seems to be no academic consensus as to what exactly constitutes a ‘criminaljustice theory’ but this text approaches the task by explaining from differ- ent, often competing, but sometimes complementary, perspectives why the various components of the ‘criminal justice system’ operate in the way that they do and in whose interest. This book thus considers the theoretical underpinnings of criminal justice and its institutions and in doing so considers the areas of legal philosophy and ethics, explaining criminal behaviour (criminological theory), policing, the court process, punishment or penology and youth justice. The theories discussed are significantly all the products of an era encompassing approximately the past three centuries which has come to be termed the modern age and it is a time period which has its origins in a period of great intellectual ferment and activity known as the European Enlightenment. TheEuropean Enlightenment and the rise of the modernage The European Enlightenment involved the development of a whole range of thought concerning the nature of human beings, their relationship with each other, institutions, society and the state, and in doing so, provided the guiding ideas of the modern age. This is not to say that all of these ideas have stood the test of time and circumstance, but before the eighteenth century, the human world and the ideas that underpinned it are distinctly less recognisable to modern observers than those which emerged and struggled to gain acceptance in that tumultuous period. Many of the ideas of the Enlightenment stressed commonalities among people and, in doing so, threatened the social domination of the aristocracy and the established Church. Before this time the common people had been encouraged by the church to simply accept their lot in life but with the rise of Protestantism and 2 Modernity and criminal justice the ‘Protestant ethic’ people came to expect success for hard work in this world and not to have to wait until the ‘afterlife’. Consequently, many people could now identify a direct connection between hard work and success, while assumptions about the natural superiority of the powerful aristocracy, and their right to economic wealth and political power, came to be challenged. Writers of the Enlightenment period were concerned with exploring social conditions and thus, in the late eighteenth century, John Howard wroteThe State of the Prisons in England and Wales, Immanuel Kant produced his great essay Fundamental Principles of the Metaphysics of Morals and Jeremy Bentham presented his Introduction to the Principles of Morals and Legislation.Inspired by such ideas and responding to dramatically changing economic and political circumstances, revolutions occurred in the American colonies and in France, giving rise to political systems that would embrace the new conceptions of individual rationality and free will. These revolutions moreover prompted changes in ideas concerning human rights that were championed in many European countries by the merchant, professional and middle classes and these developments introduced significant changes in the nature of systems of government, administration and law. The eighteenth century was thus a period of enormous and significant change. The authority of the old aristocracies was being seriously questioned, both because of their claims to natural superiority and their corrupt political practices. A new and increasingly powerful middle class was benefiting from the profits of trade, industry, and agricultural rationalisation and in the interests of the latter the enclosure movement dispossessed many of the rural poor from access to common lands and smallholding tenancies. This movement caused great hardship to many of the rural poor yet, at the same time, produced a readily available pool of cheap labour to satisfy the demands of the Industrial Revolution. As a result of these changes, societies were becoming increasingly industrialised and urbanised, with previous standard forms of human relationships based on familiarity, reputation and localism yielding to more fluid, often anonymous interactions which posed significant problems for existing forms of social control. Traditional conceptions of property and ownership were disrupted by these social changes and the enclosure movement provides a good example. In the interests of maximising the economic viability of agricultural land, many land- owners fenced in previously open tracts of common land and this process gradually deprived ordinary people of what had been their customary rights to use common land and its resources such as game, fish, firewood, food plants and fruits. These changes created popular resentment among the poorer sections of the largely rural society and seriously jeopardised the agricultural and rural power base of the traditional aristocracy. The plight of the poor was, moreover, in sharp contrast to the wealth of the newly affluent classes which was displayed in the streets of the growing urban areas, in close proximity to the dispossessed who had migrated to the towns in order to find employment. The rich, even though they tended to reside in separate parts of the new towns and cities from the poor, were nonetheless no longer as geographically isolated in their everyday affairs. Those employed in