#1
When someone talk about due process, or receiving their “due”, they are usually referring about something that they feel is rightly allowed to them. In fact, that is specifically the historical meaning of due process. Ever since antiquity, every society has had some perception of it. That’s because the perception of due process differs and diverge widely from society to society (Galligan, 1996). The basic scheme stays steady, but how much a person feels rightly permitted to depends on the historical and cultural context in which they live. Due process is united to custom, which can diverge even among regions or localities within a nation. Customs are the regular habits and non-religious rituals of a local people. Customs along with folkways (proverbs and symbols) and norms (guides for behavior) make up the sociological definition of culture. The extent of due process among the customs of a people is the hallmark of a civilized or decent society. Due process generally refers to the regularity, fairness, equality, and degree of justice in both procedures and outcomes (Galligan, 1996).
The inkling of due process in law seems to have materialized only in societies which practiced the accusatorial, or adversary, system. Societies which practiced the inquisitorial system kept people in jail for long periods of time without letting them know the charges, and suspects were often bound and obliged to plead guilty or testify against themselves.
Fairness and justice is the perception of doing what’s best. It may not be perfect, but it’s the good and well-brought-up thing to do. It requires being level-headed, standardized and regular, when all around you is prejudice, corruption, or the desire of an angry mob to see justice done. Fairness requires breadth and depth. Not only does the outcome have to be fair, but so does everything along the line such as evidence gathering and presentation. Fairness is difficult to put in the form of strict legal rules and principles that cover every situation.
On a practical level, there’s less of a peril to the whole legal system. If your system is convicting a few innocent, chances are it’s railroading many of the culpable, so you’ve got two problems on your hands — those who are falsely imprisoned and those who have a stronger habeas corpus claim (Kadish, 1957). If your system is letting a few guilty slip through, chances are that those lucky evil-doers might change their ways, or in any case, law enforcement or informal methods of social control can pick up the slack (Mashaw, 1985). However, on the more important theoretical level, it depends on what kind of system you want to have — one that just rolls over people indiscriminately — or one that is individualized and takes into account the need for your society to expand freedom.
On legal and political matters there are no laws nor conventions nor pressure of any kind, which demand that the media provide balanced coverage of events. They were given the freedom to be committed or uncommitted, biased and be propagandist, it is clear that the media can be very potent in the political process in Australia, this according to Solomon (1984). The primary relying factual information between untrained persons in the sensitive issues of criminology and criminal justice, they are untrained in the art of interpreting criminal statistics and untrained in the ability to question certain theories and perspectives.(Australian Law Reform Commission:1975) The second factor is the ever-present issue of revenues. Crime and reprimand issues guarantee readership. People react to annoyance by purchasing the newspaper or watching the television news. Indignation sells newspapers and lifts television and radio ratings. The more indignation that the media can stir up, the more customers will come to the media marketplace.
The opinion of the people is deceivingly straightforward notion. It is almost certainly just to declare that, in deference of the majority of the day-to-day job of the majority judges, there is no usually divided public opinion. .(Australian Law Reform Commission:1975) Most people never go to court. For those who do, it is a once-in-a-lifetime experience. In the days when juries participated regularly in the administration of civil justice, some members of the community saw civil courts at work and came away with an impression, perhaps favorable, perhaps unfavorable, about the justice system, or an individual judge. Most people now have very little exposure to the civil system in that way. People who are unfortunate enough to be involved in litigation see justice as a form of dispute resolution, and their views are probably influenced by outcomes. Winners are likely to have a more benign opinion of the system than losers. Some, but not many, might form a broader judgment about the wisdom and justice of some aspect of the law. There are few who would care to express opinions on the law of contract. Perhaps more people take an occasional interest in the law of tort. By and large, the community leaves constitutional law to the experts.
The main exemption to this example is offense and penalty. That is a subject in which there is a soaring stage of unrestricted awareness. .(Australian Law Reform Commission:1975) People expressed opinions strongly and widely. In the administration of criminal justice there is more participation of the public. Juries try most serious offences, upon indictment. The charge of being out of touch is most frequently leveled at judges by way of complaint about the sentencing of offenders. Most of us react to the charge, as you would expect, like lawyers. What exactly does the charge mean? How do you test whether it is true or false?. It is often made in circumstances where that is a fair response. There is, however, a wider, political, dimension to this. It is political, not in the party sense, but in a sense that concerns the relationship between the judiciary and the community; a relationship that cannot ignore. There is a need to try to understand the meaning of the accusation, and do what we can to assess its merits, even though that may be difficult.
Even though a number of judges converse self-assuredly of society values while they recognize what they are, they may be characterizing their personal values to the community for emblematic reasons, and without any considerable source for a conviction that those principles are normally collective. Judges have no techniques for or expertise in, assessing public opinion. .(Australian Law Reform Commission:1975) Judges ordinarily do not seek to influence public opinion. As an institution, the judiciary is passive in these respects. Courts sometimes conduct surveys of litigants and lawyers for limited purposes related to their administration, and seek to inform the public about aspects of their business, or about topics such as judicial independence, but they do not sample community opinion for the purpose of informing their decision-making. And they do not set out to influence wider community values. They are neither followers nor leaders of public sentiment.
According to the Director of the NSW Bureau of Crime Statistics and Research, and she also has written a book entitled “Law and Order in Australia: Rhetoric and Reality” Dr Weatherburn (1987) and the September 1987 issue of the Australia and New Zealand Journal of Criminology by David Indermaur, they both agreed that there are five main points on the perceptions of public opinions on criminal justice: (Gleeson:2004)
1. Most people, in Australia and elsewhere, greatly over-estimate the risk that they will become victims of crime. Their fear, although exaggerated, cannot be ignored. The fear itself is a significant reality, and affects the way the criminal justice system is regarded by the public.
2. Most Australians believe that crime is becoming more common. They are right in relation to some kinds of crime, and wrong in relation to others.
3. For example, surveys conducted in Canada and Australia found that 70% of Australians and 80% of Canadians believed that the murder rate had increased, when in fact it had declined significantly in Canada, and remained stable in Australia.
4. Public perception of crime and punishment is dominated by crimes of violence, and sentences imposed for such crimes. This is of practical significance. Violent crimes constitute only a small part of the total pattern of offending, but they are what the public focus on in forming opinions about crime, punishment, and the justice system. This inevitably involves a distortion but, once again, the perception itself is a significant reality.
5. When presented with detailed information about particular offences and particular offenders, a person who start out with a severely punitive reaction reduces what they think is an appropriate penalty.
6. The public are not well-informed about the level of sentences that courts in fact impose. This is probably related to a point made earlier. People are far more likely to read or hear about what are regarded as aberrations. Most people never hear about most sentences, because most sentences attract no comment. Indeed, when sentences that attract unfavorable publicity are the subject of appeal, there is every chance that, even if the appeal succeeds, the public will never learn of that.
#2
Restorative justice is concerned with healing victim’s wound, restoring and reinstating offenders to law-abiding lives and mending the harm done to interpersonal relationships and the community. At the same time, it seeks to take part in all stakeholders and endow opportunities for those most impinged by the crime to be directly involved in the course of responding to the harm caused (Zehr, 2001). The innermost basis of restorative justice is that victims, offenders, and the affected communities are all primary stakeholders in the restorative process. Victims comprise not only those directly affected by the crime but also family members and members of the affected community. The wellbeing, provision and the wants of these victims are the starting points for any restorative process thus the crucial objective of taking part to the needs of the community is important if public stresses for harsh punishment are to be suppressed (Zehr, 2001). This entails the statement that crimes or violations are consigned against actual individuals, rather than against the state. Restorative justices therefore, encourage and promote restitution to the victim by the offender rather than retribution by the state against the offender. Instead of enduring and augmenting the cycle of violence, it attempts to bring back relationships and impede the violence (Braithwaite and Strang, 2001). It also aspire to sanction victims to partake in point of fact in discourse or arbitration with offenders wherein victims take an active position in overseeing the exchange that takes place and as well as defining the responsibilities and duties of offenders (Zehr, 2001). Offenders are likewise motivated to take part in this exchange, to comprehend the harm they have caused to victims and to take active responsibility for it. This means making efforts on their parts to set things right, make expiation for their violations by amending to particular obligations that may come in the form of reparations, restitution, or community work. While carrying out these obligations may be experienced as painful, the goal is not a payback or vengeance rather restoration of healthy relationships between individuals and within communities that have been most affected by the crime. It is also a forward-looking, precautionary rejoinder that struggles to comprehend crime in its social context and defies people to scrutinize the origin of the grounds of violence and crime in order that these cycles might be broken and impede (Zehr, 1990). This tactic is based on the belief that crime has its origins in social conditions and be familiar that offenders themselves have often endured harm. Therefore, communities must both take some responsibility for remedying those conditions that contribute to crime and also work to uphold healing. Healing is vital and is not just for the victims but at the same time for the offenders. Both the rehabilitation of offenders and their integration into the community are vital aspects of restorative justice. Offenders are treated respectfully and needs are addressed. Removing them from community or imposing any other severe restrictions is a last resort (Zehr, 2001). It is thought that the best way to prevent re-offending is re-integration. The justice process in this way strengthens the community and promotes changes that will prevent similar harms from happening in the future (Cragg, 1992). It is generally thought that restorative justice should be integrated with legal justice as a complementary process that improves the quality, effectiveness, and efficiency of justice as a whole. Because they focus on the needs of the victim, the offender, and the community, restorative processes can help to determine how the law should be applied most fairly (Zehr, 1990).
Criminal justice systems and crime-control policies provide insights into the meaning and practice of political life. They illustrate at a very basic level a relationship between government and the governed, the capacity of a state to regulate the behaviour of its citizens, and the scope and limits of legitimate governmental authority.
Much of the academic literature analysing the criminal justice system within liberal democratic states like Australia seems to treat criminal justice as sui generis, as featuring a distinctive set of characteristics uniquely fashioned by its interplay of authority, obedience, deviance and punishmentIn this respect, criminal justice has much in common with other policy spheres. These commonalities arise from an endemic tension between liberal values and democratic values. What results, in the criminal justice sphere as elsewhere, are policy responses which can appear to be unsatisfactorily inconsistent or indecisive or fluid but which represent political judgements and political balances struck within the policymaking process.
In broad terms, the characteristic tensions emerge in situations such as the following: balancing expectations about self-reliance with expectations about the provision of community-provided public services; recognizing the autonomy of individual citizens, while at the same time insisting upon contributions to collective projects; determining through the political system the appropriate portfolio of “public goods” (understood in the technical sense as those necessarily requiring collective provision); handling the demands on collective decision-making arising from “prisoner’s dilemmas” and “tragedies of the commons” (i.e. from the aggregated public consequences of individual private actions);(9) settling on some form of co-existence between majority decisions and the interests of minorities; deciding whether particular issues or problems are really “public” or “private” business; working out how to balance or prioritise between competing claims by different individuals for the recognition of their “rights”; and so on. These tensions as translated into a myriad of policy options and policy debates — about the economy, about health care, about cultural policy, about schooling, about taxation, indeed about the whole policy agenda — explain much of the character of the political process in a liberal democracy such as Australia. Put simply, the characteristic politics of a liberal democracy involves the recognition and management of these tensions. Structuring political disputes and arguments — about policy directions or legislative proposals or party platforms or the acceptability of particular laws — is this much deeper phenomenon of the shifting balance between the liberal and democratic traditions.
#3
There are several reasons for the above statement, even though it normally sets the context for debate. First, it has the result of setting criminal punishment off from conventional or everyday uses of the word. The broadest definition of punishment is ‘rough treatment’ or ‘suffering given or received’. The philosophical definition requires, on the other hand, that punishment involve the deliberate or intentional infliction of pain, or suffering, or harm on someone for a misdeed she has committed, as something worthwhile in its own right or as a means to some end. Understood as a definition, this would seem to entail that a person cannot be punished for something she has not done. It provides utilitarian with a way of dealing with the apparent implication of their theory that punishment of the innocent may sometimes be justified. Finally, it implies that ordinary language uses of the term are substandard or in some other way deficient, and therefore misleading or inadequately precise.
The effect of adopting the philosophical view is to separate punishment in criminal law contexts from punishment as it is normally conceived. Yet the demand for punishment comes not from those trained in legal or philosophical terminology but rather from ordinary people, who have to live with the law and who see criminal offences and punishment in the context of other activities, where actions also give offence and merit punishment. The distinct phenomenon only tenuously related to its non-legal cousins. There is very little evidence, it must be said, that punishment for criminal acts, as it is discussed in the course of normal life, is understood in this second way.
There is more to be said on this issue, however. Most of the attacks on punishment are attacks on punishment defined as philosophers have defined it. For this concept of punishment assumes, among other things, that good can come from evil. It also sets punishment in conflict with rehabilitation. Imposing punishment with the aim of causing pain or suffering sets the offender off from others (Honderich, 1969). It is an essentially negative act that classifies and stigmatizes the person it is directed against. Its classical expression is incarceration, execution, or banishment. Rehabilitation, on the other hand, has reintegration as its goal. Its object is to help an offender rebuild links with society. Many have concluded, therefore, that punishment and rehabilitation are incompatible.
Finally, this view of punishment sets sentencing against modern accounts of the evolution of cooperation, which imply that, as conflict resolution strategies, traditional theories of punishment are ineffective and likely to be counter-productive, something that experience with corrections confirms (Ten, 1987). The second account does not have the implications of the first. Hard treatment need not be deliberately inflicted to be punishment. Rather, the second account views punishment as anything that causes pain or suffering, whether inflicted for that purpose or not. Thus we can speak of a punishing hike, a punishing game of hockey, a punishing attitude, or punishing demands. To view the function of sentencing as conflict resolution is compatible with this second definition but not the first. Law creates and shapes human interaction and human expectations. It can function, furthermore, only if the expectations it creates are widely shared. To fail to meet those expectations is to create distance and tension and invite a re-evaluation of one’s relationship with others. Offences alienate offenders from those against whom they have offended. If confidence in the law is to be maintained, criminal offences must be denounced and the right of victims to be protected and compensated affirmed (Doble, 1987). Law enforcement requires as a consequence that the law seek to identify offenders and require that they participate in a process designed to persuade them to acknowledge wrongdoing and to compensate for it in some way. The sentencing process, therefore, requires that offenders participate in an unpleasant process of evaluation and criticism, whose goal is to convince or require them to do painful or unpleasant things: acknowledge wrongdoing by paying a fine, admit guilt, apologize for misdeeds, make amends through compensation or community service, and submit to surveillance because trust has been undermined, and so on (Ten, 1987).
It follows that the sentencing and correctional process will have the character of punishment for almost all offenders subjected to it. It will involve, that is to say, the imposition of penalties in the knowledge that they will be experienced as painful and perhaps even harmful, where that is unavoidable (Fitzerald, 1962). But if the goal is conflict resolution, the penalties will be imposed or agreed to not with the aim of causing suffering, but with the aim of resolving conflict. It is true that the process will be engaged in with the knowledge that the outcome will probably be experienced as painful by those subjected to it. But it will not be engaged in for the purpose of causing suffering. And the solutions arrived at will not be advanced because of their pain-causing character.
#4
The nature of the problems presented by “DRUGS” and discusses the criminal justice systems response in Australia Combating the trade in illicit drugs accounts for a significant proportion of the time and cost of the Australian criminal justice system, and is a particularly high priority for some of the more covert, undercover investigatory and enforcement arms of the system (Chester and Shelley, 2003). It is, for example, one of the principal functions of the National Crime Authority. The illegal drug trade has been estimated as having reached a scale equivalent to about 0.5 per cent of the national Gross Domestic Product. At a more human scale, Australians are dying in increasing numbers from heroin overdoses and the drug problem is known to contribute to local street and household crime as drug users seek to acquire the cash or cashable goods to support an expensive habit.
There is a classically “liberal” response to the drug problem which essentially advocates the decriminalisation of the industry (or at least some of it, such as the softer drugs like marijuana and/or the consumption end of the production-distribution chain) and its re-regulation in ways more akin to a normal industry (Chester and Shelley, 2003). This response draws on positive and negative elements of the liberal credo: on the positive side, it reaffirms the rights of citizens to engage in activities without state interference at least up to a point where demonstrable harm is being done to others and, on the negative side, it is sceptical about the continuing accountability and integrity of the police and judicial apparatus which the state must mobilise to combat the drug trade.
This liberal approach to drug use, and strategies such as “harm reduction” which draw upon it, have some prominent advocates (Chester and Shelley, 2003). However, it has proved less salient within the political system than a contrary perspective which regards illicit drugs, and possibly the ostensible individualism of the drug user, as threatening community cohesion and commonly held values. There are conservative and progressive variants of this community-focused discomfort with drug-taking. Conservatives probably dislike its flouting of social order and discipline. Some progressives are concerned about anti-social causes and consequences: as argued by a Melbourne Age editorial along these lines, “people who regularly get high on drugs are less likely to care what happens to themselves or to anyone else” and drug dependence is associated with social, not just individual-level, problems such as “socio-economic disadvantage, unemployment, disordered relationships and homelessness”.
Two prominent attempts to liberalise public policy have exercised the various sides of the debate in recent years. In both of these cases, the conservative side, legitimising itself through arguments drawing upon the discourses of public opinion and community values, has prevailed over liberal reform proposals (Chester and Shelley, 2003). In April 1996, a Drug Advisory Council appointed by the Victorian Government and chaired by Professor David Penington published its report. Recognising the relatively widespread consumption of marijuana and endeavouring to remove it from the criminal company of more dangerous illicit drugs, the report recommended the decriminalisation of the possession of small quantities of marijuana. The report recommended that the use and possession of other drugs such as heroin, cocaine, amphetamines and ecstasy should remain offences, but advocated relaxed penalties especially for first-time offenders. It proposed that drug education should be a mandatory component of the school curriculum and that drug rehabilitation programmes be expanded.
In establishing the Drug Advisory Council and in commenting on some of its preliminary work, Victorian Premier Jeff Kennett had seemed to foreshadow support for some liberalisation of drug laws and, after the report’s publication, Kennett invited public debate in advance of Parliamentary scrutiny in which Coalition members would have a conscience vote (Chester and Shelley, 2003). Some support for the Penington recommendations was forthcoming from the Council for Civil Liberties, from spokespersons from the Catholic and Uniting churches, and from some legal and welfare groups active in drug rehabilitation programmes. These voices, however, seemed to be quickly drowned out by those of conservative opponents of liberalisation.
References
Australian Law Reform Commission 1975, Criminal Investigation, Report No. 2, Australian Government Publishing Service, Canberra.
Braithwaite, J., Strang, H., 2001, Restorative Justice and Civil Society. John Braithwaite, Heather Strang, Eds. Cambridge: Cambridge University Press
Chesterman, Michael and Hempton, Shelly., 2003, Law and Justice Foundation of New South Wales, Australia.
Cragg, W., 1992, The Practice of Punishment: Towards a Theory of Restorative Justice.”New York: Routledge.
Doble, J. 1987, Crime and Punishment: The Public’s View. New York: The Public Agenda Foundation.
Fitzgerald, P.J. 1962, Criminal Law and Punishment. Oxford: Clarendon Press.
Galligan, D. 1996, Due Process and Fair Procedures: A Study of Administrative Procedures. Oxford: Clarendon Press
GLEESON, MURRAY 2004, JUDICIAL CONFERENCE OF AUSTRALIA COLLOQUIUM – ADELAIDE, Melbourne, Australia.
Honderich, T. 1969, Punishment: The Supposed Justifications. London:
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Mashaw, J. 1985, Due Process in the Administrative State. New Haven, Connecticut: Yale University Press Paffenholz, Luc Reychler, Eds. Boulder.CO: Lynne Rienner Publishers.
Solomon, D. 1984, Australia’s Government and Parliament, 6th edn, Thomas Nelson, Melbourne.Survey and Criticism. 66 Yale LJ319.
Ten, C.L.1987, Crime, Guilt and Punishment. Oxford: Clarendon Press.
Zehr, H. 2001, Restorative Justice. In Peacebuilding: A Field Guide Thania
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