Justice One of the Most Consistent Problems

Justice

One of the most consistent problems facing the criminal justice system is the influence of institutional culture on the administration of justice, both at the level of the police and the courts. While there are of course written guidelines and laws dictating the actions and decision-making process of both the police and the courts, in practice there is a substantial amount of leeway when it comes to dealing with specific situations. As a result, the particular institutional culture of a department or court can go a long way towards informing an individual's actions in regards to a specific case, for good or ill (Morris, Leung, Ames, & Lickel 1999, p. 781-782). On the one hand, the institutional culture might encourage accountability and transparency, and so police and the judiciary would likely feel compelled to act within the bounds of established legal and ethical frameworks. If, on the other hand, the institutional culture encourages an in-group mentality, then individuals will feel more comfortable bending or breaking the rules in the knowledge that their peers will not reprimand them for it. This is particularly dangerous because police and the courts are tasked with delivering non-prejudicial justice, but if a department or court has developed an unaccountable, in-group culture, then there is little to no check on potential prejudicial actions or attitudes. Not only does this impinge on the rights of the citizenry, but it ultimately delegitimizes the police and courts in the eyes of the public.

To begin it is necessary to define what is meant by institutional culture, because it has something of a specific meaning when discussing the justice system. One of the earliest theoretical discussions of culture's effects on the justice system came from James Wilson's theory of police behavior, which included a focus on "local political culture" in order to demonstrate the reasons behind differences in the makeup and behavior of different police forces (Hassell, Zhao, & Maguire 2003, p. 231). Wilson, who was arguably more famous for his "broken windows" theory of crime prevention, nevertheless made an important contribution to an understanding of the ethical and equitable delivery of justice when he examined the effect of local political culture on policing, because he opened up the field of criminal justice and social theory to an area previously not considered.

Wilson's theory was based on observations he made regarding the relationship between the makeup and structure of the municipal government and the corresponding police departments of those municipalities. He found that:

Police departments in cities with a professional form of government, for example, focused more on law enforcement activities and had a more bureaucratic structure than agencies residing in cities with a traditional form of government which focused more on order maintenance activities and, correspondingly, had a less bureaucratic structure. (Hassell, Zhao, & Maguire 2003, p. 231)

While Wilson's work focused on the local political culture's influence of policing style, rather than the presence or absence of prejudice in policing, his research offers a useful starting point for examining the influence of institutional culture on criminal justice, because it demonstrates how institutions develop a particular culture that affects nearly every aspect of their behavior. If the local political culture of a city can actually affect the style and structure of a local police agency, then the actual culture within that agency will undoubtedly influence the delivery of justice.

This is part of why this study uses the term institutional culture rather than the concept of police or judicial sub-cultures, which is also a common way of framing the issue. Where sub-culture views an institutions' particular culture as somehow secondary or else descendent from a larger, more unifying culture, it is actually more helpful to view the particular culture of an institution as an entire culture in and of itself, because this is how they frequently function in practice. In other words, understanding the effect of institutional culture on prejudice in the criminal justice system requires acknowledging the almost inherently insular nature of that system, and regarding police and court culture as a sphere in itself allows one to better appreciate how this insularity can help and hinder the delivery of non-prejudicial justice.

As hinted at in the introduction, at its best the institutional culture of a police agency or court can encourage accountability and transparency, two things which are valuable and worthwhile for their own sake but which can simultaneously ensure the delivery of non-prejudicial justice while enhancing the image of the justice system in the eyes of the public. This is because a culture of accountability and transparency by definition encourages individuals to serve as a check on each other's behavior, moderating any individual person's intentional or unintentional tendencies towards discrimination. For example, the number of false or coerced confessions is disturbingly high (especially when involving minority defendants and suspects), and this problem is exacerbated by a certain degree of secrecy when it comes to the recording of interrogations (Linkins 2007, p. 142). A culture of accountability and transparency would likely encourage officers to not only maintain detailed (ideally electronic) records of their interrogations, as many human rights advocates have argued for, but also to act as implicit checks on each other in order to ensure that individuals are not coerced into a confession simply due to their racial, ethnic, or gender status. Similarly, if courts are going to deliver non-prejudicial justice, they must be able to rely on the interrogation accounts provided by police, something that can only happen within an institutional culture of accountability and transparency.

However, institutional culture usually only becomes a topic of discussion when it breaks down, or encourages secrecy and solidarity over transparency and accountability. Sadly, ample research has demonstrates that the "cornerstones of police culture" are secrecy and solidarity, because it is extremely easy for policing agencies to develop a kind of in-group mentality that reinforces the worst attitudes and behavior while quashing any dissent that might challenge this behavior (Cancino & Enriquez 2004, p. 321). This is because "police have the propensity to carry out their work using retaliatory tactics (e.g. physical force) toward the public," with "much of the retaliatory responses" coming as "a function of police perceptions of citizen deviance," but specifically perceptions that "are not individual in nature, [but] rather […] are governed by strong group cultural forces that influence officers" (Cancino & Enriquez 2004, p. 322). It is extremely easy for a police agency or court system to deliver prejudicial justice, because, for example, a tendency toward secrecy, solidarity, and in-group mentality means that prejudicial attitudes are almost certain to form, regardless of whether those prejudices have to do with race, gender, politics, or even the simple divide between law enforcement and the public, which can occur when law enforcement sees some kind of inherent interest in retaliating against the public as a whole (Vidmar 2002, p. 76).

A culture of secrecy and solidarity not increases the likelihood that a police agency or court will develop prejudicial attitudes, it also ensures that the legitimacy of the justice system diminishes in the eyes of the public. For example, large-scale surveys have shown that the European Union's Court of Justice is viewed with fairly little legitimacy or respect by the public, because its particular culture and structure are not widely evident or understood (Caldeira & Gibson 1995, p. 372). As a result, individuals judge it based on its associations with the European Union, whose leadership is already notorious for exhibiting a culture of secrecy and solidarity at the expense of the public (Caldeira & Gibson 1995, p. 372). This diminishing of the justice system in the public eye is a serious problem, because it ultimately hinders the law enforcement community from doing its job, as the public becomes much less likely to cooperate with investigations and prosecutions and much more likely to seek alternative forms of justice (Bainbridge 2006, p. 171).

B.

The treatment of victims of sexual violence has steadily improved over recent decades and centuries as society in general and the law enforcement community has become increasingly aware of the need to treat victims with understanding, care, and respect. While all violent crime represents a kind of personal violation, sexual violence can be especially impactful due to the varied and powerful emotions and ideas surrounding human sexuality, ideas that have subsequently resulted in public policy that has historically not been particularly helpful or kind to the victims themselves (Brooke 1870, p. 202-203; Howard & Dixon, 2011, p. 151)). By examining the treatment of victims of sexual violence in England and Wales, it will be possible to see not only the best practices for dealing with victims of sexual violence, but also the ways in which structural and cultural factors continue to hinder law enforcement's response to this particular area of criminal activity.

The importance of examining law enforcement's response to sexual violence becomes clear when one realizes that, according to recent survey data, "women in England and Wales fear being the victim of rape more than any other offence," and furthermore, "victims of rape form the largest proportion of people suffering from Post-Traumatic Stress Disorder" (Gunby, Carline, Bellis, & Beynon 2012, p. 1). In recent years England and Wales have actually improved the plight of sexual violence victims through a number of reforms, includes "the introduction of special measures to assist victims to give evidence in court, improved practices and protocols for working with survivors and an expansion of services to support victims" (Gunby, Carline, Bellis, & Beynon 2012, p. 2). In particular, the 2003 Sexual Offences Act was meant to serve as a kind of substantive update to England and Wales' laws regarding the investigation and prosecution of sexual offenses, and it came in the face of evidence that the justice system was severely lacking both in terms of its own internal investigations into sexual crime and the conviction rate for offenders (Goldson 2006, p. 64). Part of this lack was due to the fact that England's legal history is almost entirely dependent on the common law tradition, and part of it was due to the simple fact that crimes which disproportionately affect women have historically been regarded with something less than intense interest or dedication (Nemitz 2006, p. 110-111).

However, the reforms of the last decade should not be taken to mean that the treatment of sexual violence victims is anywhere close to ideal, because a number of issues still remain. Perhaps the most pernicious is the occasional tendency for law enforcement to act skeptical of a victim's claims, a phenomena that increases in frequency when the victim had been voluntarily consuming alcohol prior to the attack (Gunby, Carline, Bellis, & Beynon 2012, p. 2). This is not to suggest that it is law enforcement's natural position to disbelief claims of sexual violence, but rather to recognize that investigating and prosecuting sexual violence comes with an extra set of difficulty not commonly found in the case of other crimes, including the admittedly murky concept of consent as it relates to intoxication. While it is often tempting to come down strongly on either the side of the accuser or the accused, in many cases where alcohol is involved, the reality is much harder to discern, and thus law enforcement must be careful to treat potential victims with respect without simultaneously rushing to judgment. This difficulty arises because "in order to mitigate possible rejection, the cues men and women use to signify attraction are typically ambiguous," which can quite understandably lead to situations in which one party misinterprets the actions or words of another (Gunby, Carline, Bellis, & Beynon 2012, p. 2). While alcohol awareness and moderation programs can help prevent these kinds of situations, the fact remains that law enforcement must learn to find some nuance when dealing with sexual assault victims in cases where alcohol is involved in order to protect potential victims without unintentionally victimizing an innocent suspect (Burrell & Erol 2009, p. 190).

Aside from cases involving alcohol, another area of sexual violence in which England and Wales suffers in its response is domestic violence, because sexual violence committed within a preexisting relationship is not only common, but also difficult to investigate and prosecute (Applegate 2006, p. 368). In the past women were generally considered the property of their husbands, and domestic violence, including sexual violence, was fairly easy to conceal. As society has matured domestic violence has become increasingly condemned, and public pressure has succeeded in forcing law enforcement agencies into investigating and prosecuting domestic violence cases more vigorously (Applegate 2006, p. 376).