Comparative Criminal Justice Systemspgil.pk/wp-content/uploads/2014/06/comparative_criminal...transnational crimes when they occur across nati-onal borders, according to the definition

Licensed to:

Printed in the United States of America1 2 3 4 5 6 7 14 13 12 11 10

Comparative Criminal Justice Systems,Fourth Edition

Harry R. Dammer and Jay S. Albanese

Publisher/Executive Editor: Linda Schreiber-Ganster

Acquisitions Editor: Carolyn Henderson Meier

Editorial Assistant: Virginette Acacio

Marketing Manager: Michelle Williams

Marketing Coordinator: Jillian Myers

Marketing Communications Manager: LauraLocalio

Content Project Management: PreMediaGlobal

Art Director: Maria Epes

Production Technology Analyst: Lori Johnson

Manufacturing Buyer: Linda Hsu

RAS, Text and Image: Roberta Broyer

Production House/Compositor: PreMediaGlobal

Cover Design: Riezebos Holzbaur/BrieannaHattey

Cover Image: From left to right, copyright© 2005 China Photos/Getty Images; Harry R.Dammer; FREDERCNOY/AFP/GettyImages

© 2011 Wadsworth, Cengage Learning

ALL RIGHTS RESERVED. No part of this work covered by the copyrightherein may be reproduced, transmitted, stored, or used in any form or byany means graphic, electronic, or mechanical, including but not limited tophotocopying, recording, scanning, digitizing, taping, Web distribution,information networks, or information storage and retrieval systems, exceptas permitted under Section 107 or 108 of the 1976 United States CopyrightAct, without the prior written permission of the publisher.

For product information and technology assistance, contact us atCengage Learning Customer & Sales Support, 1-800-354-9706

For permission to use material from this text or product,submit all requests online at www.cengage.com/permissions

Further permissions questions can be e-mailed [email protected]

Library of Congress Control Number: 2010928987

Student Edition:

ISBN-13: 978-0-495-80989-0

ISBN-10: 0-495-80989-6

Wadsworth Cengage Learning20 Davis DriveBelmont, CA 94002USA

Cengage Learning is a leading provider of customized learning solutionswith office locations around the globe, including Singapore, the UnitedKingdom, Australia, Mexico, Brazil, and Japan. Locate your local office atwww.cengage.com/global

Cengage Learning products are represented in Canada byNelson Education, Ltd.

To learn more about Wadsworth Cengage Learning, visit www.cengage.com/wadsworth

Purchase any of our products at your local college store or at ourpreferred online store www.cengagebrain.com

Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.

Licensed to:

1 | | Introduction

Defining TermsThe Origins and Growth of Comparative Criminal JusticeWhy Compare Systems of and Issues in Criminal Justice?The Historical-Political ApproachModel SystemsBasic Values in the Criminal Justice SystemPolitical Culture versus Politicized JusticeThe Plan of This BookSummaryComparative Criminal Justice at the Movies: Hotel

Rwanda (2005)Critical Thinking Exercise: Honor KillingDiscussion QuestionsFor Further ReadingWeb Pages for Chapter

Key Terms and Concepts

comparative criminal justice

comparative criminology

criminal justice system

ethnocentrism

globalization

international crime

transnational crime

1Copyright 2010 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.

Licensed to:

Recent headlines provide an insight into thesignificance of comparative criminal justice

and the magnitude of the problems it addresses:

International Arms Trafficker Charged withNarco-Terrorism Conspiracy

Doctors Charged with Illegally DistributingNarcotics across Borders

Where Will the “Merchant of Death” ArmsDealer Stand Trial?

Attempted International Sale of Stolen PicassoPainting

Corruption at the U.S. Border ThreatensSecurity

Guilty Plea in International Organ Sale andTransplant Scheme

These headlines make it clear that crime is oc-curring across borders, offenders must be caught andadjudicated, and strategies must be designed for in-ternational crime prevention and deterrence. Buthow is this to occur? How much transnational crimeis actually occurring? How can we intervene againstcross-border crimes when most police agencies andcourts have authority only within their own coun-try? How should international offenders be adjudi-cated and punished? All these questions are thesubject matter of comparative criminal justice.

This book deals with these issues, and the differ-ent criminal justice systems of countries outside theUnited States, to understand basic philosophies oflaw and justice, arrangements for crime preventionand law enforcement, adjudication alternatives,methods of rehabilitation and punishment of con-victed offenders, and selected issues of transnationalorganized crime, juvenile justice, and terrorism.These international and comparative processes willbe compared to those in the United States, offeringthe reader context in evaluating different approachesto crime, law, and justice around the world.

DEF IN ING TERMS

It is important to be clear about the central termino-logy of comparative criminal justice. Comparative

criminal justice investigates and evaluates a nationalsystem of justice in terms of other countries, cultures,or institutions. The key root word is compare, andcomparative criminal justice offers a systematicmethod to examine the strengths and weaknesses ofdifferent approaches to crime, law, and justice aroundthe world.

The term comparative criminology is thestudy of the causes and correlates of crime in twoor more cultures. In comparative criminology, wetry to explain why crime occurs in different formsand at different levels in one country versus another(Winslow and Zhang, 2008). We will discuss thereasons why some crime rates are high or low indifferent countries in Chapters 2, 10, 11, and 12,although a major focus of this book is on the crim-inal justice systems and their operations acrosscountries.

Criminal justice system is the term used toexplain and understand all of the agencies whosegoal is to control crime. It consists of police, courts,and corrections agencies, which act to enforce thelaw, adjudicate suspects, and deal with convictedoffenders.

International crimes have been described as“crimes against the peace and security of mankind”(Adler, Mueller, and Laufer, 2009). Internationalcrimes are based on international agreements be-tween countries or on legal precedents developedthrough history, and include offenses such as such asgenocide, torture, and enslavement of populations.These are among the acts identified by consensusamong nations as being illegal everywhere. Thelist of international crimes has grown over the years,as nations have come to share common concernabout various behaviors, so some national and trans-national crimes have become international crimes asworld nations reach consensus on unacceptableforms of conduct.

Transnational crimes are offenses whose in-ception, acts, and impact involve more than onecountry. These crimes usually involve the provisionof illicit goods or illicit services, or the infiltrationof business or government. Table 1.1 summarizesthe most common transnational crimes and briefdefinitions. All of the offenses in Table 1.1 are

2 C H A P T E R 1


Licensed to:

transnational crimes when they occur across nati-onal borders, according to the definition above.

Most contemporary examples of transnationalcrime can be placed in one of the categories inTable 1.1. For example, sea piracy is a modernform of racketeering and extortion, theft of culturalobjects is a form of trafficking in stolen property,and theft of intellectual property such as DVDs andsoftware codes is usually a combination of counter-feiting and fraud.

Although there may be some overlap betweentransnational and international crimes, because afew crimes can sometimes be placed in both cate-gories (such as international drug trafficking), theyare not the same. Transnational crimes always in-volve at least two countries, whereas some interna-tional crimes can occur within the boundaries ofonly one country, as with genocide or apartheid.The term transnational crime will be used consistentlythroughout this book to describe the illegal activi-ties that occur across international boundaries.

THE ORIGI NS AND GROWTH

OF COMPARATIVE

CR IMINAL JUST ICE

The origins of the comparative method in areasother than criminal justice can be traced back toancient times. However, comparative criminal jus-tice is a relatively new field of inquiry that appliesthe comparative methodologies used in law andpolitical science to the social sciences of sociology,criminology, and criminal justice. Its origins can betraced back to the 1700s, the “Age of Enlighten-ment,” and to a man who is considered by some tobe the first criminologist—Cesare Beccaria (1738–1794). In 1764, Beccaria’s essay on crime and pun-ishment called for changes in Western Europeancriminal justice, including the abolition of the deathpenalty, torture, and secret trials (Sherman, 2003;Hagan, 2007). Soon thereafter, others such asJeremy Bentham (1748–1832), Adolph Quetelet

T A B L E 1.1 A Typology of Transnational Crimes

Transnational Crime Type of Conduct Brief Definition

Drug trafficking Provision of illicit goods The manufacture or distribution of controlled substances

Trafficking instolen property

Provision of illicit goods The sale, distribution, or large-scale possession of propertyobtained in violation of the law

Counterfeiting Provision of illicit goods Forged or faked documents or products intended todeceive the purchaser

Human trafficking Provision of illicit services Recruitment, transportation, or harboring of persons forthe purpose of exploitation, such as prostitution andforced labor

Cybercrime and fraud Provision of illicit services Obtaining property through deception of the owner, oftenaccomplished using computers and the Internet

Commercialized vices(sex and gambling)

Provision of illicit services Systematic provision of sexual or gambling services inviolation of applicable laws

Extortion andracketeering

Infiltration of businessor government

Obtaining the property of another or unfair competitiveadvantage because of threats of future physical injury,property damage, or exposure to criminal charges, as partof an ongoing criminal enterprise

Money laundering Infiltration of businessor government

Disguising funds obtained from illegal activity, using banksor businesses, to make it appear as lawful income

Corruption Infiltration of businessor government

The misuse of power or position for unlawful gain oradvantage

I N T R O D U C T I O N 3


Licensed to:

(1796–1874), Alexis de Tocqueville (1805–1859),and Emile Durkheim (1858–1917) conductedcross-national studies of crime.

During the mid-1800s, criminal justice profes-sionals began the search to learn more about cross-national crime. In 1853, the General StatisticalCongress was held in Brussels, in 1872 the Inter-national Congress on the Prevention and Repres-sion of Crime was held in London, and in 1914the First International Police Congress was held inMonaco. These meetings were the first large-scaleattempts to collect data on international crime andto deal with issues related to crime and justice onan international scale. Because of the larger worldproblems in the first half of the twentieth century,including two world wars, there was little interestin comparative crime, and justice research was lim-ited to individual countries looking inward to theirspecific crime problems. That changed in the late1960s, when the United Nations developed thefirst Crime Prevention and Criminal JusticeBranch under the direction of Gerhard O. W.Mueller.

Since that time there has been a steady andrenewed interest in international crime and justiceissues. Many criminologists, governmental agen-cies, and international organizations have cometo see the value in the study and dissemination ofinformation on issues of international and compar-ative criminal justice. Various forms of statisticaldata have been compiled by the InternationalPolice Organization (Interpol), the World HealthOrganization (WHO), and through the Interna-tional Crime Victim Surveys (ICVS). The UnitedNations has created a large group of criminal jus-tice information providers, including the DagHammarskjold Library in New York City andthe website of the United Nations Office onDrugs and Crime (UNODC).

The National Institute of Justice (NIJ) is theresearch, development, and evaluation agency ofthe U.S. Department of Justice. Recognizing theneed to better identify and describe crime and sup-port those who fight crime, NIJ decided to developan International Center in 1998. The InternationalCenter’s mission is to stimulate and facilitate

research and evaluation on transnational crime andjustice issues and to disseminate the knowledgegained throughout the national and internationalcriminal justice communities. Since its inception,the International Center has worked with theUnited Nations and its various institutes to mounta variety of studies on topics like transnational or-ganized crime, corruption, and human trafficking(Albanese, 2007; Finckenauer, 2000).

In recent years, academics have had consider-able interest in comparative crime and justice. Inthe United States prominent American scholarshave called for the “globalizing” of criminal justicecurricula (Adler, 1996) and for “internationalizing”criminology and criminal justice study (Friday,1996). During the 1990s, at least three major NorthAmerican academic conferences chose the relatedtheme. In November 1995 and November 1999,the American Society of Criminology titled theirannual conferences “Crime and Justice: Nationaland International” and “Explaining and PreventingCrime: The Globalization of Knowledge,” respec-tively. In March 2003, the Academy of CriminalJustice Sciences held their annual conference underthe theme of “The Globalization of Crime andJustice.”

Comparative criminal justice courses in col-leges and universities have flourished in recentyears (Cordner et al., 2000; Peak, 1991). TheJohn Jay College of Criminal Justice in NewYork City developed what is the first full-fledgedbachelor’s degree in International Criminal Justice(Natarajan, 2002). Various forms of written andelectronic material on the subject have now beenpublished, with thousands more cross-nationalstudies as compared to a mere decade ago (Howardet al., 2000; Adler, 1995). To some there is aquestion as to whether comparative criminal jus-tice study has indeed grown out of its “infancy”and whether comparative study may be an “exoticfrill” or “an excuse for international travel”(Howard et al., 2000; Bayley, 1996, p. 241). How-ever, even healthy skepticism cannot deny the factthat the field has grown considerably, and currentevents continue to highlight the internationalnature of crime and justice issues.

4 C H A P T E R 1


Licensed to:

WHY COMPARE SYSTEMS OF

AND ISSUES IN CR IMINAL

JUST ICE?

There are many reasons to study and compare issuesin and systems of criminal justice. From a broaderperspective, everything we perceive is based oncomparison. As stated by political scientist KarlDeutch:

The differences which we perceive incertain aspects of any two events, are per-ceived against a background of similaritywith others, and so is the relative unique-ness of an event. We call an event uniqueif it is similar in very few aspects ordimensions, and different in very, verymany from others. Without attemptingcomparison, how could we know thatsomething was unique? If something weretruly unique in any aspect, how could wediscuss it? We should have no words for it.We could only talk about it in negatives,calling it ineffable, unmeasurable and soon, and then we would be very close tomagic or religion and well away fromscience. (1996, p. 31)

Therefore, comparisons lie at the foundation ofall our thinking, because it is only through compar-ison that we can assess the relative utility of laws,policies, programs, and alternative actions of alltypes.

Comparison is also a key element in criticalthinking. Critical thinking is purposeful mentalactivity which permits us to examine the relativestrength of evidence, arguments, and alternatecourses of conduct. In many ways, the ability tothink critically helps us to solve daily problemsand even make important life choices. There aremany ways to engage in critical thinking. Oneway is to follow a simple three-step process. First,we determine what we know about an issue and askourselves why we think that way. For example,maybe we feel that the death penalty is a legitimateway to punish offenders because we believe that it

is less costly than life imprisonment. Second, weseek out the opposite side of the story. In the caseof the death penalty, we may learn about the vol-ume of research indicating the actual cost of lifeimprisonment compared to the death penalty.Finally, we objectively weigh the evidence, com-pare the diverging opinions, and then make a deci-sion based on the available evidence.

For the purposes of this book, there are threepractical reasons we should compare systems of andissues in criminal justice: (1) to benefit from theexperience of others, (2) to broaden our under-standing of different cultures and approaches toproblems, and (3) to help us deal with the manytransnational crime problems that plague our worldtoday.

To Benefit from Others’ Experience

“The reason for comparing is to learn from theexperience of others and, conversely, that he whoknows only one country knows none.” This pro-found statement by George Sartori (1996, p. 20)was made to illustrate the importance of interna-tional comparative study in the field of political sci-ence. But his remarks are equally relevant tocriminal justice study. Comparative work in crimi-nal justice is an excellent vehicle for learning moreabout how others practice criminal justice. Whenwe can learn about the criminal justice processes ofother countries, we are then able to develop hy-potheses that will help us begin to solve our ownproblems related to crime and justice (Burnham,1998; Zimring, 2006).

In all areas of the criminal justice system—police, courts, and corrections—there are manyexamples of how nations have adapted others’ meth-ods of criminal justice implementation. For example,people wonder why Japan has a much lower crimerate than the United States or, indeed, most otherWestern nations. The Japanese themselves give someof the credit for their low crime rates to their policemethods—most notably, community policing. Manycountries have become interested in adapting theJapanese police practices, including the use ofKobans (small local police stations). Many U.S. cities,



Licensed to:

including Atlantic City, Detroit, and Houston, havemodified the Japanese methods and use them in theirlocal police operations.

Many countries have also adopted rules of crim-inal procedure that were pioneered by others. Infact, some criminal procedure rules, like the rightto counsel at an early stage of the criminal process,are becoming universal in Western systems of justice.And many countries have even adopted entire legalcodes from the codes of others. The NapoleonicCode of civil law, developed in France in the earlynineteenth century, was one such export, as was theFrench penal code, also developed under Napoleon.Another export in the late nineteenth century wasthe German Civil Code. These codes have had anenormous influence on the development of legalsystems and criminal justice systems throughout theworld (Merryman, 1985).

Corrections strategies also tend to spill overborders. For example, the idea of day fines, whichwas first developed in Scandinavian countries, hasbeen adopted by Germany and, more recently, byGreat Britain and the United States. And NewZealand, Belgium, Australia, Canada, and the UnitedStates all have implemented different kinds of re-storative justice programs. Restorative justice is anidea that was cultivated by many victims’-rights ad-vocates in the United States, but it has its roots inthe justice practices of many indigenous cultures.

There are many other examples of countriesborrowing or adapting criminal justice practicesfrom the United States. In the nineteenth century,many European countries, especially France, copiedAmerican methods of incarceration—specifically,the Auburn system and the Pennsylvania system.More recently, former communist countries inEastern Europe have called upon the FBI to helptrain them in the fight against corruption and orga-nized crime. Many countries have also improvedtheir ability to collect and disseminate crime statis-tics using the U.S. models of the Uniform CrimeReports (UCR) and National Crime VictimizationSurveys (NCVS).

However, specific practices should be adoptedonly after serious thought and evaluation. Criminaljustice system reformers are aware that it is naive to

try to import institutions that are bound to localcultural values without modifying them to conformto the new context. For example, it would beshortsighted for U.S. policymakers to think thatwe could easily implement a strict corporal punish-ment system like that found in Islamic societies.The separation of church and state, the heterogene-ity of U.S. society, and the democratic basis for ourlaws would preclude such an idea.

To Broaden Our Understanding

of the World

A second reason for studying the administration ofjustice in other countries is to broaden our under-standing of other countries and cultures. If we failto broaden our understanding of other countrieswe are more likely to fall prey to the problem ofethnocentrism—the belief that one’s own coun-try or culture does things “right” and all otherpractices are “wrong” or “foreign.” Ethnocentrismis a common phenomenon, as people often thinktheir country, culture, or religion is better thanall others. In terms of crime and criminal justice,ethnocentrism is a problem because it can leadto crime within and across borders as well as dis-crimination, oppression, or violent ethnic-basedconflicts.

Americans are frequently astonished to hearabout practices related to crime and punishmentin other systems. Why does one country, SaudiArabia, cut off a hand or a foot or stone a personto death as punishment for certain criminal acts?Why is lengthy pretrial detention without bail con-doned in some countries, such as France, as a wayto ensure greater justice? Why does Japan have sofew lawyers compared to most countries, especiallythe United States? The fact is that a nation’s way ofadministering justice often reflects deep-seated cul-tural, religious, economic, political, and historicalrealities. Learning about the reasons for these differ-ent practices can give us insight into the values,traditions, and cultures of other systems. Suchbroadening of perspective helps us see our ownsystem in more objective terms.

6 C H A P T E R 1


Licensed to:

To Deal with Transnational

Crime Problems

A third good reason to study criminal justice froma comparative perspective is the increasing need toaddress transnational and international crime pro-blems. These problems have now become imper-ative because the multicultural world we now livein has entered the stage of globalization. Globali-zation is the term used to describe how the worldhas become interdependent in terms of the eventsand actions of people and governments around theworld. In short, globalization embodies the ideathat the world is “getting smaller.” Globalizationhas occurred as a result of a number of cultural andtechnological changes in the twentieth century(Adler & Mueller, 1996). Tremendous innovationsin communications, increases in worldwide trans-portation, and growth in technology—especiallythe Internet—have served to fuel the move toglobalization. Numerous worldwide events, suchas the end of the Cold War and the subsequentdemise of the former Soviet Union, the changingof China to a market economy, and the creationof free-trade blocs such as the European Unionand the North American Free Trade Agreement(NAFTA) have also fueled the globalizationprocess. One of the results of globalization, how-ever, is the rise in international and transnationalcrime.

A recent trend in criminal justice is to look atthe impact of globalization on crime (Bossard,2003). This approach supports the view that crimetranscends national boundaries; for example, ease oftravel by air has enabled criminals to do their workin other countries or easily escape to a safe haven.As air and sea trade have increased, so has the smug-gling of illegal goods such as drugs and guns. Strongevidence suggests that some individuals have evenengaged in the illegal smuggling of human bodyparts to wealthy persons in other countries whoneed medical assistance. In countries that arein economic or political turmoil, many personsattempt to flee, causing problems such as interna-tional criminal activity, refugee flows, the spread ofcontagious disease, and nuclear weapons and drug

trafficking (Cusimano, 2000, p. 4). When refugeesenter a country, either legally or illegally, they ex-perience difficulties adjusting to new language andcultural norms, and many find themselves in somekind of legal trouble.

Technological growth also has contributed di-rectly to the vast increase in the types and volumeof transnational crime, with computers and tele-communications playing a key role. “The very net-works that legitimate businesses use to move goodsso cheaply are the same networks that criminalsuse to move illicit goods so easily” (Winer, 1997,p. 41). So technology, like all advances, can be usedfor good or bad.

Sensitivity to the values of and problems facedby other countries also helps in resolving conflictsor overcoming barriers to cooperation across bor-ders. And if the recent past has taught us anything,the key to solving the problems of transnationalcrime and criminal justice is global cooperation.We now know that in order to effectively dealwith terrorist groups like al-Qaida we must workinternationally to eliminate their worldwide finan-cial networks. To address drug trafficking into thesouthern regions of the United States we mustwork effectively with Mexican law enforcementagencies, a task that is made more difficult by thecorruption at various levels of government.

If we wish to serve justice well, whether it befor crimes committed within our borders or inanother region of the world, international coopera-tion is an essential ingredient. Without internationalcooperation we cannot find, extradite, or serve jus-tice on those who violate laws and cause pain andsuffering throughout the world.

THE H ISTORICAL -POLI T ICAL

APPROACH

The general approach taken in this book can becharacterized as historical and political. Individualnational arrangements for the administration ofjustice develop over the course of centuries in re-sponse to local needs, efforts by individual leaders,



Licensed to:

and historical events. For example, if we wish tolearn more about the reasons for the current violentcrime rate within a country, it is imperative to un-derstand the historical reasons behind violent crimedevelopment in that country (Neapolitan, 1999).Therefore, this book contains relevant historicalinformation that bears upon the systems of justicewe are examining.

The political context of systems of justice is alsoimportant because criminal justice agencies aregovernmental institutions, and they reflect politicaldecisions about law and the administration of jus-tice. In the United States, for example, it would bedifficult to understand the development of criminalprocedure over the years if we did not have a goodunderstanding of the role of the U.S. SupremeCourt in American government. In this book,then, criminal justice arrangements are examinedin a historical context with attention to the politicaldevelopments that affected the process.

Social and economic forces are also extremelyimportant in shaping attitudes and developmentsrelated to administration of justice, and they areoften tied to historical and political events. Under-standing the power of drug trafficking gangs inLatin America, drug use patterns in developedcountries, and ongoing conflicts in African coun-tries must account for social and economic forcesin those societies. These influences will be notedwhere relevant in our discussion.

MODEL SYSTEMS

This book will describe and compare six modelsystems of justice as manifested in six different na-tions. There are 192 independent states in theworld. Independent state refers to people who arepolitically organized into a sovereign state with adefinite territory. A sovereign state is an internation-ally recognized unit of political authority. Inaddition, there are 76 “dependencies” or “areasof special sovereignty” that are associated in someway with an independent state. Examples are

Puerto Rico and American Samoa, which are de-pendencies of the United States, and Bermuda andthe Cayman Islands, which are politically tied tothe United Kingdom.

To make matters more complex, there areeven more “nations” than independent sovereignstates. Nations can be any group with a commoncultural, ethnic, racial, or religious identity, such asthe different Native American groups present inNorth America (Cusimano, 2000). Each sovereignstate or nation has its own unique system oflaw and justice. The student of comparativecriminal justice cannot learn all the facts about allthese systems in depth. In fact, such informationgathering does not necessarily result in betterunderstanding of the nature of crime and justicein any particular system. But by describing insome detail the particular arrangements in repre-sentative or model systems, we can keep the dis-cussion in better focus than would otherwise bepossible.

Our model systems are found in the countriesof England, France, Germany, China, Japan, andSaudi Arabia. These systems are “models” in thesense that they closely reflect the workings of par-ticular historical families of law within variouspolitical frameworks. From this point on, we willuse the terms model countries and model systems inter-changeably. Chapter 3 will introduce these systemsand their respective families of law. The choice ofthese six model countries does not imply that theyare superior in any way to other countries that mayhave a similar legal background. Information abouta number of other countries would have beenequally informative for comparative purposes, butthat would result in a much longer book. The sixmodel countries were chosen because of their longhistory, their stability, and their representation ofdifferent legal traditions. Notable in exclusion aredeveloping countries in Africa and the emergingdemocracies of Eastern Europe, but turbulent polit-ical situations in many of these countries, coupledwith the dearth of material available in English,makes their inclusion premature. It is the authors’hope that, after reading this book, you will be

8 C H A P T E R 1


Licensed to:

inspired to study other systems in different countriesto apply what you have learned here.

BASIC VALUES I N THE

C R IMINAL JUST ICE SYSTEM

The values of any system of justice may be classifiedas professed values and underlying values. Professedvalues are those that are proclaimed as values by theparticipants in the system. For example, equaljustice under law—the ideal that all individuals, re-gardless of social status or background, should betreated equally and according to an existing rule—is a professed value of most established systems ofjustice. In the British and American systems of jus-tice, another professed value is that the governmenthas an obligation to prove an individual’s guiltwithout any requirement that the individual coop-erate with the prosecution. This value lies at theheart of the adversary process.

Underlying values are those that are not openlyproclaimed but that nevertheless govern actionswithin the criminal justice system. Efficiency, orexpeditious handling of cases, is one such valuethat may conflict with the value of equal justiceunder law. Tolerance or intolerance of certainkinds of substance abuse, or prejudice against cer-tain groups of individuals, are examples of under-lying values in the criminal justice process. Forexample, in the Chinese criminal justice system,there are numerous situations in which individualshave certain rights that may protect them fromgovernmental intrusion and abuse—a professedvalue. According to the underlying values ofChinese society, however, societal needs aremore important than individual rights, so indivi-dual rights may become secondary during a legalproceeding.

Underlying values are harder to understand anddistinguish than professed values, and they requirelengthier and more intense study. This presents aproblem for students of comparative justice, assuch values and the practices they engender are

easy to miss in a superficial description of a justicesystem. Although examples of research in compara-tive criminal justice that focuses on underlying va-lues are limited (Klenowski, 2009; Abramson, 2003;Rosch, 1987; Berman, 1963), it is important thatwe appreciate their significance within the contextof a justice system. The student of comparativecriminal justice must acquire knowledge of pro-fessed values while also understanding whichunderlying values are present. These values will behighlighted in this book as we discuss particularpractices in criminal justice systems.

POL IT ICAL CULTURE VERSUS

POL IT IC IZED JUST ICE

Administration of justice is a governmental func-tion, and therefore reflects the political culture of anation. When we speak of culture, we are talkingabout deep-seated patterns of behavior andthought that have developed over the course of asociety’s history. A nation like Germany, with apolitical culture that emphasizes legalism, or closeadherence to rules, is bound to reflect that concernin its justice system. A nation with a political cul-ture that values community welfare over individ-ual rights, as does Japan, will reflect those values inits justice system. In the Chinese legal system, in-dependence of the judiciary is not valued to theextent that it is in the United States. This is be-cause the political culture in China emphasizes theneeds of the collective (the entire society) and dis-courages independent action by citizens. In theUnited States, by contrast, the fear of centralizedpower that dominated the discussion at the Con-stitutional Convention in 1787 was reflected in afederal judiciary whose insulation from politicalinfluence was supposed to be guaranteed by a lifeterm. Revolutionary or post-revolutionary socie-ties and settled societies will have differentapproaches to justice.

The fact that administration of justice in agiven country reflects the political culture does



Licensed to:

not mean that justice is politicized. Politicized justiceinvolves perverting the judicial or criminal justiceprocess in order to achieve particular politicalends, usually to punish enemies of the regime inpower or to deter others from joining those ene-mies. Politicization of justice occurs in all coun-tries on occasion and in some countries on aregular basis. Politicized justice may also involvean attempt to get publicity for causes that are sup-ported by a regime’s opponents. The trials ofStalin’s opponents in the Soviet Union of the1930s and of the Chicago Seven in the UnitedStates of the 1960s have been cited as examplesof politicized justice (Danelski, 1971; Juviler,1976). A more recent example would be the legaltreatment, or lack thereof, of those persons in-volved in the 1989 Tiananmen Square incidentin China, where over 800 persons died from theresult of Red Army bullets and countless otherswere incarcerated without trial. Although politi-cized justice is hard to demarcate with precision(because it is usually mixed with real violationsof conventional law), it is an object of concernthroughout the world.

THE PLAN OF THIS BOOK

We will consider each stage of the criminal justiceprocess, from arrest through punishment, as itexists in the model countries chosen. We willalso look at crime rates, legal cultures, trial pro-cesses, sentencing philosophies, and penal systems.Because of the tremendous variety of criminal jus-tice practices and institutions, it would be confus-ing (or even impossible) to discuss all of them.Fortunately, major systems can be classifiedaccording to historically based families of law.These families of law, also called legal traditionsor legal systems, are four in number: CommonLaw, Civil Law, Socialist Law, and Sacred Law.All modern legal systems are based at least partiallyon one or another of these historical legal arrange-ments. We will describe these families of law

before we examine criminal justice processes, andwe will group countries according to their majororientation toward one or another family. Thisapproach will simplify the task of considering allsystems, making clear major similarities and differ-ences around the world.

To further add to the coherence of compara-tive criminal justice, we will describe in summaryform the rules and practices in the six model coun-tries: England, Germany, France, China, Japan, andSaudi Arabia. These countries were chosen becausethey represent different governmental and legalstructures, as well as different cultural traditionsthat affect the criminal justice process.

England has a unitary centralized governmentand historically has been the prototype of aCommon Law system. France, also with a unitarycentralized government, is a model of a Civil Lawsystem and, indeed, was the leading nation indeveloping the modern Civil Law tradition.Germany, a federal nation with both state and na-tional levels of government, has implemented itsown version of Civil Law since the latter part ofthe nineteenth century. China, the most populouscountry in the world, is one of the few that still usesthe Socialist legal system. And although Socialistsystems actually practice a variant of Civil Law,they have enough distinctive characteristics to war-rant classification as a separate family. Japan has atruly hybrid system. At various times in its history,Japan has adopted Chinese law, French law,German law, and American law, all of whichcontinue to influence and inform Japanese lawand justice. The product, however, is distinctlyJapanese and is attuned to the particular cultureand social needs of the Japanese people. Finally,Saudi Arabia adheres to the Sacred Law traditionwith a justice system based on principles of Islamiclaw as outlined in the Koran. This fact makes itsjustice system distinct from those of the othermodel nations, which have secular legal systems.Because of the familiarity of the American systemto most readers, the U.S. system will be referred tofrequently in this book to provide points of con-trast with other systems.

10 C H A P T E R 1


Licensed to:

SUMMARY

This chapter describes many of the reasons forstudying comparative crime and justice. It explainshow comparing across national borders helps us tolearn how other nations approach crime and justice,increases our understanding of other cultures, andprovides a basis for dealing with the increasingglobal crime problem. Although a relatively newfield of study, comparative criminal justice hasgrown considerably in recent years and will con-tinue to do so in a globalized world. We review

how professed and underlying values are practicedby various governments and impact crime andcriminal justice. The historical-political approach isemployed to explain and understand the context fordifferences in criminal justice around the world.We will augment our understanding of criminaljustice practice around the world using six modelsystems representing different families of law anddiverse cultural values and traditions.

Comparative Criminal Justice at the Movies

Movies seek to entertain and inform the audienceabout a story, incident, or person. Many good moviesalso hit upon important substantive themes relevant tounderstanding crime and justice in comparative per-spective. Read the movie summary below (and watchthe movie if you haven’t already) and answer thequestions below to make the subject matter connec-tions to comparative criminal justice.

Hotel Rwanda (2005)Terry George, Director

Genocide occurred in Rwanda during a period of 100days in 1994, and the world did not take notice. Anestimated one million members of the Tutsi tribe weremassacred by members of the Hutu tribe in a tragiccase of ethnic rivalry and hatred. The movie HotelRwanda does not focus on the massacre, but tells thestory of a hotel manager who saved the lives of 1,200people during the genocide. The manager, Paul (DonCheadle), is a Hutu married to a Tutsi, bringing thetension to the personal level.

Rwanda was earlier ruled by Belgium, and duringthat period the Tutsis ruled and the Hutus were op-pressed and many were killed. The Hutus are now incontrol, and the genocide consisted of armed troops

prowling for and slaughtering Tutsis. The movie showshow the United Nations and the international com-munity ignored the pending massacre and failed tointervene while it was occurring. A colonel (Nick Nolte),representing the UN as a peacekeeper, is portrayed inthe film reporting the situation to his superiors andbeing ignored. Paul also informs his corporate head-quarters of what is going on, but his hotel location isnot a priority for them. These two men then act ontheir own to save as many lives as possible.

Rather than being a film about a million deaths, itis a film about how two people responded to tragedywhen no one else did. It shows how they used finesseand guile to take on genocide and managed to savemany lives in the process, even though the situationwas an impossible one. Hotel Rwanda raises importantquestions about human strength and weakness in theface of persecution.

Questions

1. Does this movie describe transnational or inter-national crimes?

2. How could such a large massacre happen withoutoutside intervention? Do you think it could hap-pen again?



Licensed to:

DISCUSSION QUEST IONS

1. How do international and transnational crimediffer?

2. Why should we study comparative criminaljustice?

3. Using newspapers, magazines, or the Internet,find one example of how a country has bor-rowed an idea or way of doing criminal justice.

4. What are some of the underlying values thatare present in the U.S. criminal justice system?

5. What are the advantages of using a historical-political approach to the study of comparativejustice systems?

FOR FURTHER READING

Maier-Katkin, D., D. P. Mears, and T. J. Bernard. (2009).Towards a Criminology of Crimes against Humanity.Theoretical Criminology, vol. 13, pp. 227–255.

Hagan, J., and W. Rymond-Richmond. (2008). Darfurand the Crime of Genocide. Cambridge UniversityPress.

Ragin, C. C. (1989). The Comparative Method: Movingbeyond Qualitative and Quantitative Strategies. Uni-versity of California Press.

Winterdyk, J. A., and L. Cao. (2005). Lessons from Inter-national/Comparative Criminology/Criminal Justice.deSitter Publications.

Zimring, Franklin E. (2006). The Necessity and Value ofTransnational Comparative Study: Some Preachingfrom a Recent Convert. Criminology & Public Policy,vol. 5, pp. 615–622.

Critical Thinking Exercise

Critical thinking requires the ability to evaluate view-points, facts, and behaviors objectively to assessinformation and methods of argumentation in orderto establish the merit of an action, law, policy, orprocedure. Please evaluate this scenario objectively,applying your knowledge of comparative criminaljustice to the facts of the case presented, and answerthe questions that follow it.

Honor Killing

Three teenage girls in Pakistan, ages 16–18, were kid-napped, taken to a remote area, shot, and then buriedwhile still breathing in a case of “honor killing,” wherelocal officials officiated. Under tribal tradition, mar-riages are carefully arranged by elders. Marrying with-out permission is considered an insult to the honor ofthe tribe. Honor killings are done to serve as a warningto others. One Pakistan legislator said, “These arecenturies-old traditions and I will continue to defendthem. Only those who indulge in immoral acts shouldbe afraid.” According to a report by Human Rights

Watch, a nongovernmental organization (NGO), therehave been 4,100 honor killings in Pakistan since 2001,with others occurring in other Muslim countries.(Honor killing is not advocated under Islamic religioustradition, but it has a long tribal tradition in somecountries and is not dealt with harshly, according toin-country observers.)

Questions

1. Is this case an international or a transnationalcrime, and why?

2. Given the very serious nature of the conduct andthe lack of an urgent response within the coun-tries where it occurs, what should be the responseand approach to prevent continuing honorkillings?

SOURCES: Safed Shah, “Tribal Traditions and Three Girls’ GruesomeDemise,” The Globe and Mail (Canada), September 1, 2008,p. A8: Jeff Jacoby, “Honor Killing Comes to the U.S.,” The BostonGlobe, August 10, 2008.

12 C H A P T E R 1


Licensed to:

WEB PAGES FOR CHAPTER

Go to http://www.ojp.usdoj.gov/nij/international/to visit the International Center of the NationalInstitute of Justice within the U.S. Department ofJustice.

See http://www.cia.gov/library/publications/the-world-factbook/index.html to visit the CIA

World Factbook, which provides socio-demographic,political, and criminal justice information about268 geographic entities.

Go to http://www.unodc.org/ to visit theweb page of the United Nations Office onDrugs and Crime and view its scope of work.



Documents

Comparative Criminal Justice Systemspgil.pk/wp-content/uploads/2014/06/comparative_criminal...transnational crimes when they occur across nati-onal borders, according to the definition