14
Priorities for criminal justice reform November 2020
Priorities for criminal justice reform
1
Priorities for criminal justice reform
November 2020
2
As pressure for criminal justice system reforms increase, it is important to be clearer than ever about what integrated justice systems should be aiming to deliver for citizens.
Priorities for criminal justice reform
3
No justice, no peace
In June 2020, 37- year old Gilberto Torres Reyes was convicted of two counts of murder in the state of Pennsylvania, USA.1 At the height of the coronavirus pandemic, in a well-managed and socially distanced court room, robust work by police and prosecutors made the jury’s task simple. DNA evidence and multiple witnesses tied him to the crime scene where he had shot both victims.
In the same state, in the same month, the justice system’s weaknesses were also on display. After spending three decades in prison, Andrew Swainson was exonerated of the murder of Stanley Opher on his Philadelphia porch in 1988.2 His wrongful conviction was the result of false witness testimony and serious misconduct by prosecutors and two police officers who have since been found to be responsible for the wrongful imprisonment of at least four other men.3
Two cases like these, each full of infinite complexity, show the vital importance of effective criminal justice systems. Reyes’ timely prosecution has kept a dangerous man off the streets, gives a modicum of comfort to his victims’ loved ones, and gives us all reassurance that grave crimes are punished, not rewarded. Swainson’s wrongful conviction, meanwhile, allowed a murderer to escape justice, caused Swainson and his family undeserved suffering, and wasted millions of dollars of taxpayers’ money in legal costs, ineffective court proceedings and prison time.
Reforms and innovations can help create a justice system that delivers justice more often and with fewer mistakes. However, these two cases also point out that the justice system is about more than just outcomes; it is about experiences and perceptions of justice and fairness. Therefore, any reforms and innovations need to take into account what citizens want and need from their justice system.
4
The justice system plays a role in sexual equality too. Victims of sexual offences, who are predominantly female, have been discouraged from reporting crimes due to concerns that the justice system won’t provide them with redress and proceedings will simply force them to relive their trauma.6
The criminal justice system can also disadvantage the poor disproportionately. Reliant on reduced - or in some cases non-existent - legal aid, the poor may find it harder to secure justice when wronged or defend themselves when accused.
Priorities for criminal justice reform
The need for reform
These Reyes and Swainson cases show the importance of criminal justice systems in terms of public safety but also of social justice - whether racial equality, sexual equality, or economic equality. The death of George Floyd and others at the hands of police highlight the role that criminal justice systems can play in exacerbating inequality. It is in the justice system that we arguably see most clearly the consequences of systemic disadvantage. Levels of over-representation of minority groups are shocking (see Figure 1). While systemic factors - such as disparities in economic or educational opportunity - drive much of the difference in incarceration rates for affected minority groups, there is clear evidence that practices across the justice system also contribute to this overrepresentation.4 It is, therefore, both unsurprising and deeply concerning that ethnic minorities typically have far less confidence in criminal justice agencies than do whites.5
Figure 1: Overrepresentation of specific minorities in the prison system of selected countries
Australia Canada England & Wales Netherlands United States
Aboriginal & TorresStrait Islander
(2017)
Indigeneous(2017-18)
Black(2018)
Non-Dutchmigration
background (2018)
Black(2014)
2% of populationbut 27% of prison
population
4% of populationbut 29-30% of
prison receptions
23% of populationbut 64% of prison
receptions
3% of populationbut 13% of prison
population
13% of populationbut 40% of prison
population
0
2
4
6
8
10
12
14
16
13.5
7.5
4.33.45 3.1
Disproportionality exists in all prison populations, and is often extremeDisproporationality ratio for focus countries (%prison population / % country population)
Priorities for criminal justice reform
5
The rule of law underpins social justice and lies at the heart of effective government. It allows the individuals in society to plan for the future, knowing contracts will be honoured and life and property protected. Criminal justice systems, and particularly the judiciary, play a vital role in protecting society and acting as an important check and balance on powerful groups. Where this check is weak or absent, totalitarianism and corruption may follow – undermining entrepreneurship and fair economic competition, and diverting public funds away from vital economic and social infrastructure.7 In advanced democracies with strong judiciaries, the rule of law is often robust (see figure 2). However, there are still significant issues with access to timely justice that can undermine the functioning of justice systems even in these advanced societies.
Internationally, ‘access to justice’ problem continues to be a problem. According to the Organisation for Economic Co-operation and Development, only 46 percent of the world’s population lived under the protection of the rule of law in 2016.8 The UN Office of Drugs and Crime reports that a third of countries have not yet enacted legal aid legislation, leaving the poor often unable to pursue even the most legitimate claims.9 Huge court backlogs in countries such as Brazil – where a 100 million case backlog has been exacerbated by reduced hearings during the coronavirus epidemic – can result in impossibly long delays.10
Justice delayed is justice denied, so it is unsurprising that such delays are increasingly coming under scrutiny.11 In 2016, after a trial was delayed by nearly four years due to the Crown and systemic practices, the Canadian Supreme Court ruled that such delays contravened the constitutional right to “be charged within a reasonable time” and created a new presumptive limit of either 18 or 30 months between charges and trial, depending on the nature of the case.
Strength of rule of law variesRating (out of 1) for overall strength of rule of law (World Justice Project of Law Index 2020) based on composite of 8 sub-measures
NL CAN AUS UK USA Global Avg. IND
0.840.81 0.8 0.79
0.72
0.560.51
0
0.1
0.2
0.3
0.4
0.5
0.6
0.7
0.8
0.9
Sources: World Justice Project Rule of Law Index 2020Note: All countries’ ratings are unchanged from 2019 except US and UK which are both down slightly
6
A complex system with multiple aims
Given issues of access to and uneven outcomes from the justice system, reforms are needed even in advanced nations. However, to better achieve the aims of a justice system, reformers need to know what citizens want and need from that system.
At a high level, few would argue with the idea that the criminal justice system should focus on reducing crime, supporting victims, and maintaining the rule of law.12 But there are often significant tensions between the various goals of justice systems. Countries prioritise different objectives depending on their assessment of their context, the evidence of what works, public attitudes and political values. Those seemingly abstract choices can have profound consequences. For example, some countries place a stronger emphasis on punishment (retribution) – resulting in lengthier prison sentences and creating wide disparities in levels of imprisonment across nationalities (see figure 3).13
Wide variation in use of prison across geographiesFocus country comparison, prison population per 100,000 population
Sources: All the data from International Centre for Prison Research except US, which is from https://www.prisonpolicy.org/report/pie2020.html (excluding immigration detention to be more comparablewith ICPR methodology), Netherlands which is from https://ww.prisoninsider.com/countryprofile/netherlands-2019,and Australia which is from https://www.abs.gov.au/ausstats/[email protected]/mf/4517.0
United States(2020)
Australia(2019)
688
219
England & Wales(2018)
140
Canada(2017)
112
Netherlands(2018)
54
India(2018)
340
100
200
300
400
500
600
700
800
Priorities for criminal justice reform
7
Clarifying system goals and grappling with complex trade-offs is a vital step for creating coherence in spending, reform approaches and operational improvements. We identified four strategic choices that help determine the aims of a justice system:
Prevention vs response.
Criminal justice vs social justice.
Punishment vs rehabilitation.
Long-term trust vs short-term crime control.
Finding justice can be a delicate balance between preventing crime and responding when it does take place. Some countries place more emphasis on crime and harm prevention than pursuit of those who have broken laws. For example, New Zealand has adopted a Prevention First approach in policing and the Dutch prison population has halved since 2004 as a consequence of reduced crime and less emphasis on punitive sentencing.14 Several states in Australia have pursued preventative approaches to crime, but many still have a greater focus on justice responses (for example, investment in more police officers and tougher sentencing). This has seen prison populations surge and court backlogs increase significantly.
Countries face tough choices about how much attention they pay to ensuring the right outcomes in criminal cases compared to understanding the role of the criminal justice system may play in perpetuating discrimination and disadvantage. Striking the right balance rests on tough choices about how far the criminal justice system should aim to address social justice issues through its work – for example, by giving those in prison the opportunity to address educational disadvantages or to better manage their mental health conditions.
There are also choices to be made about relative emphasis on punishment and rehabilitation particularly in regards to sentencing, prison and parole. There is good evidence that avoiding early criminalisation of young people supports rehabilitation, and some evidence that community punishments can be more rehabilitative than prison – but there are also natural concerns regarding victims’ perceptions of justice.15
There is strong evidence regarding the importance of procedural fairness in building trust in criminal justice systems.16 When institutions act according to the principles of procedural fairness, this helps sustain and strengthen the ability of legal authorities to encourage citizens to regulate themselves – and reduce the cost, danger and alienation that are associated with lack of due process. As one Canadian police chief told us, “the only way to deal with guns and gangs is if people show up in court and testify and this takes trust. It takes trust with poor and immigrant communities… without that trust you won’t get very far”. While procedural justice is usually worth pursuing in its own right, there can be trade-offs, however. For example, very high rates of stop-and-frisk/stop-and-search and persistent punishment of minor offences might yield some immediate crime control benefits, but may risk worsening community relations even when those strategies are conducted in a procedurally correct way.
8
Compounding the challenge of defining the aims of a justice system is that leaders will also need to grapple with non-justice choices that are required in all public services – specifically, those relating to trade-offs between economy, efficiency and equity.17 While the worst systems can be costly, inefficient and unequal, it is hard to find systems that are cheap, efficient, and fair. Likewise, providing truly equal access to justice for all – irrespective of race, gender, wealth, geography, access to technology, language, educational ability, health needs etc – will likely incur much greater cost than providing a more uniform service. The different priority placed on issues such as efficiency and equity are highly visible through international comparisons: in the different approaches of countries to legal aid, in differing geographical (and virtual) service configurations, and in the levels of service for those with mental health issues or disabilities.
None of the four strategic choices above are pure trade-offs. Many measures that build legitimacy and trust - for example, fair treatment of a crowd of protestors – can also have immediate crime control benefits. But assessing the current balance of priorities in the system, understanding the trade-offs and being clear on the desired direction of travel helps to build consensus and clarity about the desired improvements. Benchmarking against other states or countries can help leaders and citizens both understand their own position and to see the diversity of possible approaches. Assessing the evidence of the respective costs and benefits of different overall strategic positions, and asking hypothetical questions about priorities - such as those in figure 5 - can likewise open up new perspectives even showing where previously perceived trade-offs can be broken.
Justice priorities and trade-offsA framework to support alignment of system-wide or agency-specific reforms
The spectrums on this slide indicate key choices, while recognising that decisions are not binary
Criminal justiceorientation
Social justice orientation
Harm prevention Justice response
Punitive focus Rehabilitative focus
Legitimacy focus Immediate crimecontrol focus
Priorities for criminal justice reform
9
Figure 5: Thought experiments to imagine a new future
Asking ‘what if’ questions can be a simple and effective method for examining the priorities of any organization. For example, one criminal justice agency asked itself ‘what would the system look like if we based it around Peel’s astoundingly timeless Principles of Law Enforcement written in 1829?’ Emerging from that thought experiment were four questions for anyone in criminal justice to consider:
What would a system oriented around prevention look like?
One senior official told us “a huge tranche of people are just dipped into and dropped through a system that, at best, is not effecting change and, at worst, is doing harm to people.” How would an approach that prevented criminal justice contact and involvement be different?
What would it take to create a minimalist justice system?
As one senior police leader told us, “the police have become the dumping ground for every issue in society”. What changes in the justice system and elsewhere could allow for a more streamlined role for criminal justice agencies?
How would a ‘just deserts’ or more punitive system be configured?
It remains the case that only a minority of offences are bought to justice in every country – just think about how many people break the speed limit every day. What could be achieved through a dramatic effort to ensure that all crimes and safety threats were met with appropriate penalties and how could this be done?
How would a justice system designed around the goal of legitimacy be different to the one we have today?
What fundamental changes in workforce composition or core procedures would be needed in order to embed the principles of procedural justice into our justice systems and build legitimacy with all social groups?
01
02
04
03
10
Answers to these thought experiment questions can be paired with citizen’s priorities for criminal justice to begin to chart a path toward a more citizen-centred system.
An approach to reform that begins with high-level aims of the justice system is important because processes like priority setting and resource allocation need to take place initially at a system-wide level. After all, a wide range of justice system and non-justice agencies play a role in delivering desired outcomes. For example, people with convictions might need more than just a parole system. They may need the stability provided by decent housing, employment opportunities from businesses willing to forgive past convictions, health support to manage mental health or addiction, and the supportive bonds created by community groups.
Senior political leadership is vital for galvanising cooperation across such a diverse range of statutory and non-statutory bodies. ‘Top-down’ direction setting is not sufficient to energise system change but is an essential pre-requisite. With clarity on system priorities, each government or non-government agency can better consider its own individual priorities yet still produce coordinated results that do not duplicate efforts or open up ‘gaps’ in service-provision.18
Despite the value of defining top level aims of the justice system, it can also be a difficult process. Individual organizations within the system will have different goals and face different trade-offs. If a criminal justice system is going to make decisions about a specific issue, a clear understanding is required not just of the top-level aims of the justice system as a whole, but also of the organizational level aims that may pull in different directions. For example, whether or how to permit solitary confinement within prisons requires an assessment of its relative impact on safety of other people in the prison setting, its impact on recidivism, its fairness and compatibility with human rights, and its public acceptability – as well as the efficiency with which it achieves any of these goals. Losing sight of some of these considerations can make it easy to solve one problem but create another.
Priorities for criminal justice reform
11
Moving toward strategic, integrated justice
Our discussions with senior leaders internationally show both the difficulty and value of setting priorities and coordinating delivery for the whole justice system. In every jurisdiction we spoke with, co-ordination is highlighted as a major challenge.
Yet the justice system has also come together effectively to respond to the COVID-19 crisis. In the UK, for example, a senior official described how “taking off institutional hats to see how we could cope” was a critical success factor around rapid uplift in use of video in court hearings and other areas. Or as a senior Canadian judge put it, “[coordination] is critical. It might be that this is what COVID has done, forcing [political leaders] to look at the system as a whole and look at where different branches can cooperate – whilst maintaining judicial independence”.
While COVID has created momentum, the concept of alignment is nothing new. There are several examples of countries that have previously created the alignment required to deliver radical system changes. For example, the Netherlands which re-orientated the system towards a ‘public health’ approach and focused on recognising and responding to mental health issues has contributed to the prison population halving in less than 10 years.19 In British Columbia, Canada, starting in civil courts, there is a comprehensive effort to ensure that the efficient, digital service that citizens have come to expect are provided by the justice system. Several US states are taking radical action to tackle racial equity and legitimacy challenges.20
Progress is possible. Clarity on the complex priorities and trade-offs can transform the results that governments deliver for their citizens. We believe that now is time for leaders responsible for criminal justice systems to lead the way, bringing system leaders together and setting a clear direction regarding priorities for the coming decade of change.
12
Authors
Andi [email protected]
Karen von Monsjou [email protected]
Gert du [email protected]
James TaylorUnited [email protected]
Tom GashUnited [email protected]
Priorities for criminal justice reform
13
1. https://apnews.com/3a0622a1f4ede2ac4383896ef0557c6a
2. http://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5763
3. Chris Palmer. “As a Philly judge agreed to overturn a murder conviction after 31 years, the DA’s Office took aim at the justice system.” The Philadelphia Inquirer. June 12, 2020. https://www.inquirer.com/news/andrew-swainson-philadelphia-murder-conviction-overturned-da-larry-krasner-20200612.html
4. Structural factors play a leading role in overrepresentation, but legal decision making has also been shown to contribute.
5. For example, confidence in US police is often twice as high among white survey respondents vs black respondents according to R. Morrin and R. Stepler, The Racial Confidence Gap in Police Performance, Pew, 2019, https://www.pewsocialtrends.org/2016/09/29/the-racial-confidence-gap-in-police-performance/#wide-racial-gaps-in-views-of-police-performance
6. Marsha E. Wolf, Uyen Ly, Margaret A. Hobart & Mary A. Kernic. “Barriers to Seeking Police Help for Intimate Partner Violence.” Journal of Family Violence volume 18, pages121–129(2003)
7. R. Rotberg, Failed States, Collapsed States, Weak States: Causes and Indicators, Brookings, 2003, https://www.brookings.edu/wp-content/uploads/2016/07/statefailureandstateweaknessinatimeofterror_chapter.pdf
8. https://www.oecd.org/gov/delivering-access-to-justice-for-all.pdf
9. https://www.unodc.org/documents/justice-and-prison-reform/LegalAid/Global_Study_on_Legal_Aid_-_FINAL.pdf
10. R. Susskind, Online Courts, OUP 2019, chapter 2
11. The International Academy of Trial Lawyers has put forward
a useful summary of research on court backlogs and their deleterious effects on the justice system: https://www.iatl.net/files/public/82_court_i4a.pdf
12. For example see: https://heinonline.org/HOL/LandingPage?handle=hein.journals/hurq30&div=8&id=&page=
13. Incarceration rates depend on multiple factors, including crime rates, criminal justice effectiveness and sentencing and parole policy. However, sentencing accounts for much of the vast variation in incarceration rates internationally.
14. https://www.police.govt.nz/about-us/programmes-initiatives/prevention-first
15. Mark Lipsey. “Can Rehabilitative Programs Reduce the Recidivism of Juvenile Offenders - An Inquiry into the Effectiveness of Practical Programs.” Journal of Social Policy and Law. 611 (1998-1999).
16. David B. Rottman. “Procedural Fairness, Criminal Justice Policy, and the Courts.” In Karim Isamili ed. “US Criminal Justice Policy.” Jones & Bartlett. Burlington, MA. 2017.
17. By equity, we mean similarity in the availability and exercise of rights, opportunities and choices
18. A later article in this series will focus on how to generate alignment and drive a ‘whole systems approach’ to criminal justice improvement
19. https://www.prisonstudies.org/country/netherlands
20. For some examples see: https://www.racialequitytools.org/plan/issues/criminal-justice1
Endnotes
14
About Deloitte
Deloitte refers to one or more of Deloitte Touche Tohmatsu Limited, a UK private company limited by guarantee, and its network of member firms, each of which is a legally separate and independent entity.
Please see www.deloitte.com/about for a detailed description of the legal structure of Deloitte Touche Tohmatsu Limited and its member firms. Please see www.deloitte.com/us/about for a detailed description of the legal structure of Deloitte LLP and its subsidiaries. Certain services may not be available to attest clients under the rules and regulations of public accounting.
Copyright © 2020 Deloitte Development LLC. All rights reserved.
Designed by CoRe Creative Services. RITM0565004
