A victim-centred system
Criminologist Herbert Packer developed two key models of the criminal justice system. These are the due process model and the crime control model.
Both are highly theoretical, as no criminal justice system is ever totally one or the other. The due process model is a system wherein ‘due process’ is virtually the only consideration. In the crime control model all that matters is using the system to control crime. This, with no consideration of due process.
If you asked me which model Jamaica leans toward, I would have to say due process. In fact, I think we may have leaned too far in this regard. Now, let me be very clear, it is admirable that our system puts so much emphasis on protecting innocent men from wrongful prosecution. However, the harsh reality is that this type of system also frees many guilty persons who, over time, will harm many more innocent people than those who would have been impacted by wrongful prosecution if we had a crime control justice system.
The reality is that too many people are victims of violent crime. Why? Is it because we are a violent people? We are, but that’s not why we kill, rape, and rob. We hurt each other because there is a lack of consequence for our actions. The reason there is a lack of consequence for the actions of men who commit violent crimes is directly linked to the fact that our justice system is geared toward, or rather obsessed with, due process. Let me explain.
In the United States you can introduce the former criminal conduct of an accused into a court case but you can’t in Jamaica. So a serial rapist with multiple convictions, who has done time in prison and is accused of reoffending cannot have his criminal past and practices brought into his current case.
How is this logical? I understand that a case must be judged on the facts specific to it, but you miss out so much when you leave out specific modes of operation. Have we balanced this out properly?
I once had a case in which a man was charged for shooting at the police. He had made a complaint to the Independent Commission of Investigations (Indecom) that the police had fired at him unlawfully during the incident and still ran a defence of not being present during the shooting.
The prosecutor knew of this statement; she had the Indecom complaint in her file. However, she couldn’t introduce it into the case because you can only introduce the ‘entire content’ of the accused’s statement. This would obviously not work as his statement also spoke to not firing. So in layman terms the prosecution, if saying he places himself there as part of the case, they would have to say that him not shooting was part of the case.
Seems confusing?
Once a witness saw me at a dance, where I was working, and told me the man who murdered his relative in front of him was at the party. I arrested the suspect and was then told that the identification couldn’t stand because even though he was seen in a crowd an identification parade was still required.
I don’t know, but I just don’t see that happening in Cuba or even the United States. It just seems that we have overcomplicated this whole thing. Where are we going with this? A killer has the right to remain silent but a cop doesn’t! This is actually our law. Do we really expect to cut crime back to 90s era numbers with this system? That’s like smoking more to cure lung cancer.
Have you ever wondered why Cuba, China, and Taiwan have such low homicide rates? It’s because they have a crime control justice system, wherein there are consequences to your actions. Could you see a man in China appealing his conviction to a court in a foreign country on the basis that a juror was trying to corrupt a panel to achieve an acquittal for his case and it didn’t go as planned? That, in itself shows how we have gone overboard.
The rules that come with this due process-obsessed system have moved into a zone that defies common sense and bypasses justice. Look and learn from controlled societies. We don’t have to copy but we must study the minor issues that result in theirs being so efficient at creating an atmosphere of ‘fear of the long arm of the law’.
Look and you will see consequences as the big difference; no laws that keep evidence out to the point of it becoming an obstacle to justice.
So how do we address our issue? Well, we could look at all the reasons the Americans use to allow information about past crimes into a trial and try to use these good reasons to convince our decision makers it’s necessary. We could introduce the system of ‘pre-charge bail’ that the British have that allows the suspect to be arrested and bailed with restrictions before being criminally charged.
We could move towards a system that allows everything written, but only what’s relevant, to be admitted into evidence without being forced to admit the entire statement. We could allow confessions if the suspect waives his right to an attorney.
I may sound harsh, but so would you if you were ever unfortunate enough to have to tell a family that their missing member is now confirmed dead and hear that guttural wail as they go from disbelief to denying Christ. Or look at the dead stare of a rape victim, and maybe process a scene with murdered children, not once in your career but several times.
There is too much evil for this many rules, too much injustice so that criminals get justice, and too much failure for so little change.
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