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Crime has been an unfortunate aspect of human existence from time immemorial. Every civilization and country has had to come to grips with and takes steps to deal with it within their own value frameworks. Many of the different approaches to dealing with time come from the various assumptions and values. For countries or systems that believe a criminal is a product of his or her environment, it is more likely that money will be spent on rehabilitation and treatment, with much less of an emphasis on jail time. For those who believe people are responsible for their own actions and intend to commit crimes (indeed intention or mens rea is required in all common law systems in order to convict someone of a crime), the emphasis is likely to be on punishment or locking up the criminal. Clearly these concepts require a great deal of unpacking—which will be done in the course of this essay. The key things to examine are the various explanations for why people commit crimes, be they biological, psychological and sociological, and what sorts of criminal systems such explanations occasion. The answer to the question “How can we dilute crime,” must be: we need to balance between the due process model and crime control model. In the course of this essay I will explain what both of these are and why we must balance between them.        

To begin with, in the criminal justice system there are two opposing modes of looking of how to deal with criminals. The first is the due process model. The gist of this model is that an individual can never be deprived of basic human rights no matter how horrible a crime he or she has committed. Even to put someone in prison is to take away the criminal’s inalienable right to liberty and there must be many appeals and a thoroughly scrutinized process to ensure that everything is done by the book. At its heart the due process model would rather see nine guilty people on the street than one innocent person in prison. The end result of this mode requires many hours of painstaking work by humans checking and rechecking evidence and the court case moving very slowly through the system. Part of the assumption underlying this idea is that criminals are not really responsible for their actions. Instead of taking the view that they have intentionally violated the laws of society or a social contract and that they should therefore be punished, the belief is rather that the system in some way failed them. Perhaps they were not treated well enough under the social programs in place, perhaps their neighbours didn’t stop their parents from beating them. The concept is sociological in a way as it holds that society is responsible for each of its members and should never give up on anyone. If someone committed a criminal act they just need more help from everyone. This is of course a somewhat extreme notion, but illustrating this pole of the argument is useful for developing the concepts generally expressed in this essay.

The second mode of looking at criminal justice is the Criminal Control Mode. This system puts a high value on locking up guilty people. It focuses on protecting citizens from criminals as quickly as possible. Under this system more money is spent on policing and deterring and prosecuting criminals as quickly as possible so that the police and prosecutors can move on quickly to the next batch. If an innocent person is caught in the net, that is a tragedy, but what is important is that many bad guys got caught too. For the most part, however, the Crime Control Mode believes that the police are almost always right and there is probably a very good reason someone was arrested by them. Here the notion of individual responsibility is more significant. People are responsible for their behaviour and will be removed from society if they violate its laws. There is a severe punishment, and part of this punishment is retributive. Criminals may complain that they are acting badly because they come from a broken home or have bad genes (a biological argument for crime), but society under this model is having none of it. It sees their behaviour as an intentional choice and demands that they take individual responsibility for it. Of course, the negative aspect about this model is how the system operates—in its zeal to force people to take responsibility for their actions actual innocent people can be punished.

One thing to note in looking at these two popular models of criminal justice is that the former makes a great deal more allowance for the diversity and differences of various criminals. In the former model, for example, it is very likely that judges will reduce sentences or even offer conditional discharges to convicted criminals who explain away their behaviour by saying they are, for example, a drug addict or were mistreated as a child. Indeed some judges might go further. In the Canadian Supreme Court case R. v. Lavalee, the court found that “Battered Woman Syndrome” was an acceptable defence to a charge of murder. In this landmark case a young woman who was regularly beaten by her husband, shot him in the back of the head as he walked away from her one night (he had threatened to beat her again). According to the expert medical evidence given (and accepted at the trial), the woman in question could not leave her husband (even though he beat her regularly) because she was a victim of what was called “learned helplessness”—in other words she could not take responsibility for her own safety.

But basically the manner in which, I think, she would be prevented from telling the doctors or other people about the beatings was related to the fact that this whole process would repeat itself.  He would want forgiveness and tell her he would love her and it would never happen again and she would feel grateful.  She would feel a little loved.  It would help her self-esteem again and she would feel a little safer for a while too.  It would allow her to have a sense, a window of security for a period because she felt so trapped in this relationship (Dr. Shane, R. v. Lavalee)

The judges found that Lavalee was helpless to leave her husband and suffered from Battered Woman Syndrome which led her to fear for her life and apprehended imminent death where it might not have existed. They therefore excused her of the crime. She was unable to take responsibility for her actions because of her unique personal circumstances. It should be pointed out that she was found to be temporarily insane or behaving automatically—they court had carved out a new defence for her. The question to be asked in such a circumstance is whether or not the judges looking at a case have time to take into account the full contextual history of every individual before them—including the race, sex, creed, marital status, etc—when applying what one would hope would be a consistent, across-the-board black letter law. In the so-called Due Process model all sorts of possible reasons to excuse people from their actions can be found. There is always a reason that derogates the accused’s personal responsibility for the crime committed. The Crime Control Method is far from perfect, but it can at least be said to treat people equally. People are responsible for their actions. If they committed a crime, they will do the time.

In the fight against crime it is important to keep both of these modes in mind. The key is to strike a middle ground between the two. Criminals do have rights but if we allow them the right to not provide DNA samples, for example, we may be unable to charge them with additional crimes the sample might prove they committed. If we compel people who are simply suspects in a crime to give biological samples, we may be treading on constitutional rights. Always it is important to find a happy medium.

The reason why the debate is so emotional is that both sides have good arguments that show the place where security and freedom have to intersect. These arguments happen again and again each time a new technology comes along. Balance is key. It is not a good idea to expand these databases endlessly, but they certainly have a very important role to play.

The key in this whole discussion is not to choose between the crime control method and the due process model (although I clearly lean towards the former). The key is to strike a balance that preserves liberty and promotes individual freedom. This is clearly more difficult than it sounds. Whether human societies will ever be able to accomplish this only time will tell…

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