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This issue of Criminological Highlights addresses the following questions:
- How can judges control the operation of their courts?
- How would ordinary citizens respond to the sentences handed down in criminal courts if they were able to hear the details of the cases described by the sentencing judge?
- Are youths who cause trouble in school likely to turn into serious delinquents?
- What can be done to reduce time in pretrial detention?
- How frequent are wrongful convictions in criminal courts?
- How can police departments use forensic services most effectively?
- Can management contracts for running prisons cause prison riots?
- Why does a country with a relatively generous social welfare system have a higher homicide rate than that of its apparently similar neighbours?
Clever criminal court judges are able to manage long and unpredictable case lists.
Judgecraft – or how judges go about their tasks in the courtroom – is a practical skill that is limited by the nature of judicial authority. “Conventional adversarial norms require a formally passive judicial role…” and thus “active judicial intervention can be in tension with this principle.” Yet “the legitimacy of judicial authority rests in part on the extent to which people perceive that they are treated fairly by judicial officers they encounter. This suggests that a more active engagement by judicial officers is required for legitimacy” (p. 342).
This observational study of Australian magistrates’ criminal courts notes that active management of the court takes the judge outside the safe passive role and “may risk the legitimacy of adversarial authority,” but also requires cooperation of the other parties in the court. Nevertheless, research has demonstrated that “perceptions that the police or judges tried hard to be fair and were polite emerge as especially important in citizen contacts with the police and courts” (p. 345). The problem is that being fair and sensibly managing the activities of the court conflict with the classic passive role of the judge in adversarial proceedings.
Effective magistrates appear to have searched for ways to move each case through the court process. For example, active magistrates were able to turn requests for adjournments into delays until later in the day when progress could be made to move the case along. Nevertheless, of the 1287 matters that were observed as part of this study, about a third were adjourned. The most common reason for adjournment related to getting legal representation for the accused (26%), the need for more information (10%) or providing disclosure to the defence (12%). But in 17% of the adjourned cases no reason was offered or given in open court. Standing a matter down until later in the day was done most often to ensure that relevant parties (e.g., the lawyer) or required information was available (37%). Although magistrates relatively rarely initiated adjournments (15%), “the striking characteristic of standing matters down was that it occurred most commonly at the suggestion of the magistrate” [62% of all stand-downs] reflecting the magistrates desire “to get through the list in a way that does not delay other matters which are ready to go, and to move cases along toward final resolution” (p. 353). Of those matters that were stood down until later in the day 68% were completed or set for another procedure (e.g., trail or sentence). Though this ‘success’ rate is not dramatically higher than that of all other matters (61%), it is dramatically better than simply adjourning the case to another day. Had that been done, the success rate would have been zero.
Conclusion. In exercising ‘judgecraft’ by suggesting solutions to problems that would otherwise keep a case from going forward, magistrates obviously run the risk of undermining the legitimacy of the adversarial process. Nevertheless “when active intervention is used to consider the defendant’s circumstances more carefully, it may enhance judicial legitimacy to the extent that it rests on the fairness values exhibited when judicial officers engage with those whose claims they adjudicate… The ways in which these magistrates exercised judgecraft sometimes effectively created a limited space for more meaningful interactions” (p. 358). In accomplishing effective time management goals, it would appear that magistrates were able to “create space for a more engaged and therefore more legitimate decision-making process within the limits of conventional adversarial norms and practices. This achievement is especially important in the highly interactive context of the criminal list where most members of the public encounter the court system” (p. 359).
Reference. Mack, Kathy and Sharyn Roach Anleu. (2007) ‘Getting Through the List’: Judgecraft and Legitimacy in the Lower Courts. Social & Legal Studies, 16(3), 341-361.
Ordinary citizens who are fully informed about the sentences that are handed down in criminal cases are likely to be relatively content with those sentences.
Survey data collected in Great Britain, Canada, and Australia, among other countries, suggest that a majority of ordinary citizens think that criminal sentences are too lenient. Though these surveys undoubtedly suggest real dissatisfaction on the part of citizens with the sentences of the court, the reasons for this dissatisfaction are not clear. Previous research shows quite clearly that people do not know much about sentencing principles, sentencing practices, or the various factors that traditionally are part of judges’ decision on the appropriate sentence. Nevertheless, British and Australian survey evidence suggests that a substantial portion of people think that judges are out of touch with the views of the public.
In this study, carried out in Victoria, Australia, actual cases were presented to ordinary members of the public by the judge who handed down the sentence. Cases were chosen that involved serious offending (an armed robbery with minimal violence with an unloaded gun, rape at knifepoint by a neighbour of the victim, multiple stabbings, and a theft of a million dollars worth of goods from a company by two employees).
Employees in 32 workplaces participated by attending two sessions, typically a week apart. In the first, the employees listened to a 70-minute general talk about sentencing. In the second, the judge presented his sentencing judgement which included the facts of the case, the circumstances of the offender, and information about the law and current sentencing practice. The judge did not point to a particular sentence or possible range of sentence. Participants were told that they were not bound by sentencing law or practice.
In three of the four cases, the median of the sentences imposed by over 100 participants per case was less than the court’s actual sentence. In these three cases between 63% and 86% of the respondents would have handed down a sentence more lenient than the sentence of the court. In the fourth case (in which only 35% suggested a sentence more lenient than the actual sentence) the median sentence recommended by ordinary people was 3.2 years compared to the court’s sentence of 3 years. There was huge variation among the participants as to what the appropriate sentence was. In addition, many participants wanted offenders with personality disorders to receive a program of treatment along with a custodial sentence. “The community does rely on offender factors favouring leniency, not only offence seriousness” (p. 777).
Conclusion. “The results cast doubt on the populist view of judicial sentencing as lenient, and, hence, the wisdom of increasing the severity of sentences to satisfy what was believed to be a harsher public…. What the present study also says about the move to harsher sentencing [in many countries] at least for certain types of offence, is that it may not represent the general public’s sense of justice” (p. 779).
Reference. Lovegrove, Austin (October 2007). Public Opinion, Sentencing and Lenience: An Empirical Study Involving Judges Consulting the Community. Criminal Law Review, 769-781.
Troublesome children in school are not necessarily offenders outside of school.
It is easy to categorize a youth as being troublesome based on observations made in a single setting. School policies that focus on troublesome youths are sometimes justified on the basis of assumptions that these youths are also very likely to be offenders, or will develop into full-blown delinquents. But what if the behaviour across time and place is not as consistent as these assumptions would suggest?
It is well established that school misbehaviour is, in part, a function of characteristics of the school (see Criminological Highlights, V4N2#4, V5N5#5) rather than the youth within it. The challenge, therefore, for school or criminal justice professionals is to determine what inferences one should draw when a youth is misbehaving in school. This paper looks at the consistency of the behaviour of youths in school and in the community measured when they were 13-16 years old and again three years later.
About 1400 Dutch students from a number of different schools in a range of different sized communities filled out self-report questionnaires in school. Students were asked to report whether they had engaged in any of nine different forms of school misbehaviour (e.g., bullying, thefts, fighting, making threats) and 12 ordinary criminal behaviour outside of school (vandalism, shoplifting, other thefts, robbery, fighting) during the previous nine months. When the youths were age 13-16, there was a relationship between the reporting of any school misbehaviour and reporting of any ordinary criminal behaviour. Specifically, of those who reported misbehaviour in school, 55.9% reported at least some ordinary criminal behaviour outside of school. For those reported that they had not misbehaved in school only 15% reported being involved in ordinary criminal behaviour out of school. Even when one looks at serious misbehaviour in school (more serious thefts, fighting with injury, threatening or assaulting a teacher), the relationship to any criminal behaviour or serious criminal behaviour (more serious thefts or burglary outside of school, wounding someone, robbery) was rather modest. Among the small number of youths involved in serious misbehaviour in school (about 12% of the population as a whole), fewer than half (42%) were involved in serious criminal behaviour outside of school.
Predicting future criminal behaviour was equally problematic. Although those involved in criminal behavior or school misbehaviour at age 13-16 were more likely to be involved in criminal behaviour or school misbehaviour three years later when they were 16-19, these relationships were not very strong. Of those who were involved in serious school misbehaviour when they were 13-16 years old, only 28% were involved in serious criminal behaviour outside of school three years later. Of the 64% involved in at least some misbehaviour in school when they were 13-16 years old, only 12.1% were involved in serious criminal behaviour three years later. Although 49% of the youths who misbehaved in school were involved in at least some crime (mostly minor) three years later, this proportion was only slightly higher than the prevalence in the sample as a whole (40%).
Conclusion: The overall finding that there is not a very strong general relationship between misbehaviour in school and ordinary offending suggests that decision makers should be cautious in assuming that just because a young person is misbehaving in school that he or she is highly likely to commit serious crime later on. The evidence does not support the inference that “misbehaviour [serious or any] is a marker for delinquency, in contradiction to the suggestion… that bullying is a marker for serious delinquency” (p. 374). At the same time, it needs to be remembered that those involved in serious misbehaviour in school are somewhat more likely to be committing crime than are those who have not misbehaved in school.
Reference: Weerman, Frank M., Paul Harland, and Peter H. van der Laan (2007). Misbehaviour at School and Delinquency Elsewhere. Criminal Justice Review, 32(4), 358-379.
There are ways to control pretrial detention populations. A separate processing centre with around-the-clock, seven-day-a-week processing of cases reduced processing times dramatically for most of those who were arrested for offences.
Jail populations (those in pretrial detention and those serving ‘short’ sentences) in the U.S. have increased from about 182 thousand in 1980 to about 748 thousand in 2005. “The most commonly adopted [American] response [to this increase] was to expand jail capacity” (p. 273).
This study reports on one U.S. county’s efforts to control jail and police lock-up populations in a mid-size midwestern city. A new facility was created in which arrestee processing, case screening, contact with defence counsel, and initial court hearings were to be conducted on a 24-hour-a-day, 7-day-a-week basis for misdemeanours and minor nonviolent felony offences. The idea was that these matters would be dealt with immediately rather than over a period of days or weeks. Prior to the opening of this special centre, cases had been processed much as they are elsewhere: screening, initial hearings, etc., only happened periodically during normal court hours. Since accused people are unable to schedule their arrests to occur only during normal court hours, there is obviously a mismatch between efficient court processing and the time of arrest. On the assumption that it would be easier to change the court schedule than the timing of arrests, this project was created to deal more effectively with initial court processing.
The changed system involved around-the-clock screening of cases such that a decision could be made almost instantly about whether a case should be prosecuted. Rather than scheduling all cases for one or two times a day (on weekdays), initial court hearings were scheduled for approximately 20 different times a day. Police officers were required to file all paperwork within four hours of arrest. Prior to the implementation, this process took an average of 27 hours with a great deal of variation; after implementation it required an average of about 4 hours with relatively little variation. Prior to starting the new program, about 71 hours (approximately 3 days) would elapse between the time that case screening took place and the initial court appearance. Some cases took much longer. Under the new program, this process took only four hours (with little variation). When one looks at the time spent in custody by those for whom no charges were ultimately filed, the average person spent a total of 24 hours in custody prior to the new program. After the program, the average time was reduced to about 9 hours. For those released on recognizance, people spent an average of 24 hours in custody prior to the program and 10 hours after. Those who had bond set by the court and who had to meet this bond to be released spent about the same amount of time in custody under the new program as they had under the earlier system.
Conclusion: Under the new procedure, initial processing times for those who are arrested and brought to court were reduced considerably. While there are large numbers of such people, they do not, because of fast turnover, consume a proportionately large portion of jail space. Nevertheless, the most important factor may be that a large portion of those arrested were released quickly on a recognizance or did not have charges filed against them, dramatically reducing their time in pretrial detention.
Reference: Baumer, Terry L. (2007). Reducing Lockup Crowding with Expedited Initial Processing of Minor Offenders. Journal of Criminal Justice, 35, 273-281.
The minimum rate of factual wrongful convictions for rape-murders in the United States is estimated to be 3.3%. What is the rate for other offences?
Estimating the wrongful conviction rate is a challenge for two reasons. First, identifying “factually” wrongful convictions requires a court to determine that people who had once been found guilty are, in fact, factually innocent. This is most likely to occur as a result of new DNA evidence. Second, one has to estimate the denominator: What is the population from which these wrongful convictions is drawn?
United States Supreme Court Justice Scalia, for example, endorses the approach taken by Oregon prosecutor Joshua Marquis who starts from the finding that perhaps as many as 400 innocent people were known to have been convicted in the U.S. in the 15 year period ending in 2003 (Criminological Highlights, 7(5)#3). Marquis then suggests that even if one were to assume that the actual number of wrongful convictions were ten times that many, this number (4000) would constitute only 0.027% of the 15 million felony convictions during that period in the U.S. The problem, of course, is not so much with the numerator as with the denominator (all felony convictions). The estimate of ‘400 cases’ is based, obviously, only on those cases in which various groups have demonstrated that an innocent person was convicted. Most felony convictions (for less serious felonies) do not get much attention. Hence the legitimacy of these convictions is untested. Furthermore, the numerator is based almost exclusively on cases in which the identity of the offender was the key issue.
This paper looks carefully at evidence related to both the numerator and the denominator in rape-murder cases in the 1980s (before DNA evidence became relatively routine). The numerator should represent the number of factually wrongful convictions of a particular type that is capable of being reversed. The denominator, then, must be the total number of such cases (e.g., rape-murders convictions with DNA evidence) some of which have subsequently been found to be innocent. Depending on certain assumptions, there were either 10 or 11 capital cases involving rape-murder in which the defendant was exonerated. It was estimated that there were 479 capital cases involving rape-murder during this period. But exonerations can only occur in those cases in which usable DNA connected with the perpetrator is available. It turns out that the best estimate is that in one third of rape-murder cases, usable DNA was not available during this period. Hence the denominator estimate of 479 needs to be discounted by one-third. One can conclude, therefore, that about 3.3% (10.5 divided by 319) of rape-murder cases are likely to be wrongful convictions.
Obviously, the estimate of 3.3% wrongful convictions in capital murder-rape cases without DNA evidence at trial cannot automatically be generalized to other crimes. Yet the argument for generalizing to other capital crimes in the U.S. in which perpetrator identity is the main issue is rather compelling. Circumstances (e.g., the nature of the jury and the views of jury of the importance of the cases) are likely to be similar. For non-capital cases, one might expect that juries might not feel quite the same obligation to be certain of their decisions. This would suggest a higher error rate for these cases.
Conclusion. If a careful estimate of the number of wrongful convictions in capital cases of rape-murder and of the population from which these convictions arise suggests that one in 30 of these convictions is wrong, what can be done? The saying that “It is better that ten guilty men go free than that one innocent person be convicted” does not give us much specific direction, but it does remind us that, to some extent, the trade-off is a real one.
Reference. Risinger, D. Michael (2007). Innocents Convicted: An Empirically Justified Factual Wrongful Conviction Rate. Journal of Criminal Law and Criminology, 97(3), 761-803.
Good management of forensic services in police departments can increase the rate of apprehension of offenders.
The use of ‘ordinary’ forensic services (e.g., fingerprints and DNA) by police forces creates special challenges because these services can be costly, time consuming, and can delay ‘ordinary’ investigations. It is sometimes suggested that large police forces, because they can afford to have more specialized staff, are better able to use forensic services than are smaller, less bureaucratic, forces. This study looked at all 41 English police forces (excluding the London police forces) to see if size matters in the solving of crime with forensic services.
Looking at domestic burglary and theft of/from motor vehicles, it was found that England’s smaller police forces (those with fewer than 4000 police officers) were very slightly more likely to identify offenders for these property crimes than were large police forces. What was more notable, however, was that the percent of crimes detected by forensic means (fingerprints or DNA) was considerably higher, on average, in the smaller police forces. The average number of crime scenes visited per crime scene examiner was roughly the same for large and small police forces, and the ratio of fingerprint experts to police officers was more or less constant across police forces of different sizes. However, the number of positive identifications of offenders per fingerprint expert was, on average, considerably higher in the smaller police forces than in the larger ones. For fingerprint evidence with residential burglaries and motor vehicle offences, it would appear that small police forces were able to exercise greater informal control over the crime scene examiner’s use of resources by focusing on those crime scenes most likely to provide useful forensic evidence. Clearly, however, there is nothing special about small police forces that makes it impossible to transfer good practice to larger forces. It may simply be that managing resources effectively needs to be given more explicit attention in larger police forces.
An alternative approach to the management of the use of forensic services was implemented by the Northamptonshire (England) police in 2004. Policing standards were created requiring that strict guidelines be followed on the timely processing of fingerprint and other forensic resources and evidence. With explicit targets the timeliness of these reports increased dramatically. For example, all fingerprints from domestic burglaries were to be processed and a report produced within one working day of these data being collected. Police were required, within the guideline, to take action on positive results of the forensic investigation within 1.5 days of the fingerprint results being returned to the investigating officer. The performance of members of the police service was carefully monitored. Setting explicit and quite stringent standards appeared to increase the ability of the police forces to detect crime with forensic tools. However, after the study was over, and performance targets were relaxed, the effectiveness of forensic services in detecting offenders dropped to pre-existing levels.
Conclusion: Effective management of forensic resources within police forces can affect their usefulness. In smaller police forces, it may be easier to prioritize work informally. In larger forces, it would appear that methods such as setting explicit, defensible, and enforced performance standards may be a useful management tool.
Reference: Townsley, Michael and John W. Bond. (2007). Closing the (protective services) gap: Why size does matter when determining optimal Level 2 service delivery. International Journal of Police Science & Management, 9 (2), 183-192. Bond, John W. (2007) Maximising the opportunities to detect domestic burglary with DNA and fingerprints. International Journal of Police Science & Management, 9 (3), 287-298.
Contractual arrangements between the government and those in the public sector who were managing a recently opened prison set the stage for a prison riot.
Prison riots have traditionally been explained using two approaches: (a) deprivation theory which suggests that riots are the result of poor conditions and overly punitive internal controls and (b) administrative breakdowns in which “changes to the political structure, management, or social order fabric of a prison will create the necessary conditions for a riot to occur….” (p. 120). More recent evidence has suggested that riots occur when there are increased demands on prison administrators without resources to address those demands, discontent among correctional staff, and concerns among prisoners about such matters as unjust treatment or poor conditions. But in addition, “administration or agency dysfunction at senior levels can [have an impact on] internal prison operations and can create dissatisfaction” (p. 121) leading to the breakdown of informal behavioural norms that keep a prison under control.
This is a case study of a prison that opened in March 1997 and experienced a riot three weeks later. It turns out that in order to understand why a riot occurred, it is necessary to examine the context of a new contractual arrangement between those in the public sector running the prison and the Queensland, Australia, government. When the decision to open a new prison was made, the Queensland government allowed private sector companies to submit bids to build and run the prison, but allowed its own (public sector) correctional service to bid as well. The Queensland Corrective Services Commission (the public sector bidder) won the bid. Various concessions related to staffing and traditional union power were made as part of the bid in order to win the contract. In theory, the proposal from the public sector provided the government with a number of important efficiencies.
But there were some significant risks. In order to get past what was seen as a previous staff culture that was overly punitive and illegitimate, new (inexperienced) staff were hired. The result was that when the new prison opened, 58% of the staff had no correctional experience. The general manager of the prison had no previous experience in a similar position, though he did have an extensive corrections background. A large proportion of the prisoners sent to the new prison were drawn from the highest security classifications. In addition, the largely inexperienced staff had other challenges in dealing with prisoners: “No physical barrier existed between the keepers and the kept” (p. 130) and staff were not comfortable with this arrangement. Staff all wore the same uniform; hence it was difficult to know what the responsibilities were of different staff who did not recognize one another. And to make an already difficult situation worse, because of pressures elsewhere in the correctional system, the prison was filled quickly – more quickly than had been anticipated. Because the prison was being run under a new contractual arrangement, management could not ask for additional resources.
Meals – always a matter of contention in any institution – were provided and delivered using a new system that resulted in the food arriving cold. Prisoners were not allowed to smoke. The senior official (in the government) who made this decision was told that it was ill-advised given that, among other reasons, smoking was allowed in other institutions. The result was inevitable: “Insufficient staff, shift problems, and conflict between program, security, and unit staff, combined to cause considerable internal tension” that management ignored. Because of pressures elsewhere in the correctional system, the prison was filled quickly – more quickly than had been anticipated. On the one hand, the prison was being run under the new contractual arrangement introduced under the bidding system, and so management could not ask for additional resources. On the other hand, the prison was seen as a public institution that has an obligation to provide prison spaces, and so management could not stem the flow.
Conclusion. “The successful public-sector bid in an open-market test created an additional external pressure other than coping with the expected stress of commissioning a new prison. The rapid influx of prisoners exceeded the ability of the prison to initiate the contracted reform” (p. 135) but to change the rules would have brought the bid decision into disrepute. A private prison, on the other hand, would have been more likely to be able to resist pressure from the government to take additional prisoners.
Reference: Rynne, John, Richard W. Harding, and Richard Wortley (2008). Market Testing and Prison Riots: How Public-Sector Commercialization Contributed to a Prison Riot. Criminology and Public Policy, 7(1), 117-142.
Finland’s relatively high homicide rate appears to be the result of the economic marginalization – within a relatively generous welfare state – of older, geographically isolated, unemployed men.
Finland’s homicide rate of about 2.8 per hundred thousand residents is considerably higher than those of most other northern European nations (e.g., Norway, Sweden, Denmark, and Iceland which have rates of about 1 per hundred thousand). However, Finland does not have any of the characteristics – e.g., poverty, income inequality, other forms of social instability – often associated with relatively high homicide rates.
Why is Finland’s homicide rate so high? Compared to six other northern European countries, this study shows that Finland’s homicide victims and offenders are more likely to be older and are more likely to be have been intoxicated from alcohol at the time of the offence. Only 17% of Finnish homicide offenders were employed at the time of the offence, compared to about 30% in Sweden and Norway (the only other Nordic countries for which data were available). Homicide rates in Finland are highest in the economically and demographically declining northern and eastern parts of the country. However, compared to other major cities in northern Europe, Helsinki’s homicide rate of about 2.5 victims per hundred thousand was about average (Oslo 1.7, Copenhagen 3.4, Stockholm 2.7). “A typical Finnish homicide occurs in a private dwelling as a result of a drunken dispute between friends, family, or acquaintances. Both the victim and the offender tend to be chronically unemployed middle-aged men” (p. 74-5). Over the past century, the age specific rates of homicides committed by older men have increased dramatically.
Finland has a relatively generous social welfare system. In the past 50 years, demand for low-skilled labour has declined (especially in the northern and eastern parts of the country in which homicide rates have increased dramatically in the past 40 years). Those who were victims of these changes were absorbed into the national social security systems that, in effect, created a group of men on permanent public assistance. Seventeen percent of offenders and 24% of victims at the end of the 20th century were on permanent public assistance. Alcohol use has always been heavily involved in Finnish homicides. And heavy rates of alcohol use in a population of permanently unemployed older men in semi-rural economically depressed locations appears to be a lethal combination.
Conclusion. Finland is an exception to the general rule that nations with policies of ‘collective protection’ (p. 84) have the lowest rate of lethal violence. High homicide rates in Finland may relate to a culture that has traditionally had a strong link between high rates of alcohol use and lethal violence. Within that culture, a growing population of permanently unemployed older men involved in heavy drinking appears to be especially vulnerable to involvement in homicides. “The lethal lifestyle of this population explains why the homicide rate in Finland is higher than in other Nordic nations” (p. 85).
Reference. Savolainen, Jukka, Martti Lehti, and Janne Kivivuori. (2008) Historical Origins of a Cross-National Puzzle. Homicide in Finland, 1750 to 2000. Homicide Studies, 12(1), 67-89.
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