Summary

Over time, developments in the Dutch criminal justice system have shown that its underlying values can be emphasized differently. From the 1970s, attempts were made to reduce and prevent negative side effects of criminal sanctions. On the contrary, policy measures favored a more ‘streamlined’ response to crime via the criminal justice system and more repression since the 1980s. In recent decades, the actual functioning of this system gave rise to discussion regularly. The legitimacy of the criminal justice system is being questioned and recent reorganizations of the police, the public prosecution service and the courts have always been the result of political and sometimes public dissatisfaction with the practices of these institutions and a need for more transparency, decisiveness and centralization.

This book presents an empirical study of the opinions of police officers, public prosecutors and criminal judges on the functioning of the criminal justice system. Remarkably, little is known about how the tension between the values of due process and crime control manifests itself in practice. This is all the more surprising given the importance of this tension for understanding contemporary developments within criminal law. It is also salient in all phases of criminal investigation, prosecution and judicial assessment. The present study was not limited to the tension between due process and crime control; the tension between the various goals of criminal sanctions in the opinions of police officers, prosecutors and judges on criminal justice, have also been the subject of investigation. Both dimensions may be important to better understand the criminal justice system and its officials. This study provides insight into how opinions of police officers, public prosecutors and judges relate to due process and crime control on the one hand and to different criminal justice goals on the other. The following research questions have been formulated prior to this study:

This study attempts to gain insight in police officers’, prosecutors’ and judges’ views on criminal justice and in the factors that may contribute to these views. To answer the research questions a combination of research methods was used. In four units of the Dutch National Police, police officers were interviewed and then surveyed to find out the prevalence of certain views among them. The interviews focused on the question of how police officers perceived the criminal justice system and to what extent they trusted the public prosecution agency and the courts. Subsequently, interviews were held with prosecutors (in two different public prosecutor’s offices) and criminal judges (in two different courts). They were asked what they thought of the police officers’ views. The magistrates were also asked to give their views on the tension between due process and crime control and on different goals of criminal sanctions.

The classic analysis of criminal justice by Herbert Packer (1964), consists of two ideal-typical models: due process and crime control. The essential elements of these models are as follows:

According to Skolnick (1966), the principal problem of the police in a democratic society consists of the tension between effectiveness and legality. In Justice without Trial he focuses on the question of how police officers perceive the conflict between the obligations of maintaining order and complying with the rule of law. Following Skolnick, this book also uses Packers two models to study the (different) views police officers, prosecutors and judges take on criminal justice. In addition, it is assumed that different preferences for goals of criminal sanctions determine these professional views on criminal justice. To help identify different positions in relation to sanctions, justifications for punishment are taken into account. The philosophical approaches are generally divided in two camps: consequentialists and retributivists (after ‘retribution’). Retribution implies the imposition of punishment in response to actions already undertaken by the offender. In the consequentialist approach, justification for punishment is found in what it will achieve in the future.

It is almost too obvious to confirm that Packer (1964; 1968) rightly pointed to an important field of tension in the criminal justice system, between due process on the one hand and crime control on the other. This study confirms that Packers models can be found in the views described in this study. It has also become clear that there are significant differences in views on criminal law within the three groups under study, although ‘crime control’ and ‘due process’ do not appear to exclude each other in these views. According to Packers expectation, elements of both models are usually combined in the views of these professionals. However, the difference between the view in which criminal law acts as a ‘shield’ (due process) and views in which it is primarily a ‘sword’ (crime control) appears to be more complex than Packer suggested.

Firstly, in addition to due process and crime control there are some other objectives that play a role in the views of police officers, public prosecutors and judges on criminal law. For instance, police officers are mainly concerned with establishing ‘street justice’. This means that their instrumental view on criminal law is partly based on feelings of justice. In general, practical and moral arguments play an important role in the views of police officers on criminal justice.

Secondly, while prosecutors and judges do not appear to express their views in terms of Packers crime control model, they still do not agree with the way some colleagues assess evidence, thinking this is extremely cautious. To adequately describe such ideas, Packers ‘presumption of guilt’ isn’t sufficient. In this study the term ‘probabilistic reasoning’ was used to do so. In some of the described views on evidence assessment, probability and belief are important elements. In line with this, some judges prefer to consider themselves as ‘neutral decision makers’ who only passively listen to the pleadings and defenses in the courtroom. Other judges, however, believe that their work in a criminal case involves a more active reflection on potential gaps in the evidence presented. Such a difference in opinion raises the question whether a core assumption of the due process model is correct: that suspects are always optimally protected by criminal proceedings in which the judge plays a central role. Likewise, a minimized criminal trial (according to the crime control model) is never an underlying goal in the opinions described. This also holds for the described views on pre-trial detention. Police officers do not seem very aware of the legal rules that apply. Views on pre-trial detention among prosecutors and judges can be explained by the reduced chance that a prison sentence will be imposed at a later stage if a suspect was not taken into custody. Lead times, aspects of quality, personnel capacity and organizational efficiency also have their effect on views on pre-trial detention. The same applies to views on how to deal with the assessment of criminal evidence assessment: they may be shaped by due process and crime control considerations, but also by limitations in quality of personnel, available personnel capacity and financial resources. These limitations by definition leave opportunities unused to obtain better evidence in criminal cases. Therefore, to disregard i.e. personnel capacity and organizational efficiency, like Packer did with his models, implies omitting important factors that may be relevant for understanding how the criminal justice system operates. The tension that is created by due process demands in relation to instrumental objectives of criminal justice, seems to disappear (in part) if sufficient capacity and financial resources are made available. Under the right circumstances, without a doubt, efficiency can be seen as an aspect of quality of criminal proceedings (see also: Ashworth, 1998).

Justice may be seen as the central goal of the criminal justice system. Hereby, justice can be related to both the legal proceedings of the criminal justice system and to the (instrumental) outcomes that it can have (Packer, 1964; 1968). In the area of tension between the two perspectives, this research yields some points for attention for the future.

The discontent among police officers regarding the functioning of the criminal justice system is important. More attention to this is needed. Police officers refer to a lack of skills and knowledge concerning the handling of criminal cases by the police; they think this contributes to inadequate responses by the criminal justice system. However, this research makes clear that perceived problems will not be solved by extra training alone. Further professionalization of the police should also entail promoting awareness among police officers of the dilemmas involved in criminal justice: between due process and crime control, and between retribution and a consequentialist approach to crime. Use of their discretion should be based on a good understanding of the limits of the police and the judiciary.

On the long run the discontent of many police officers can have several undesirable consequences. Therefore, more attention should be payed to lawful police action and to improving the quality of, among other things, official records and files (so that criminal responses will be more in line with expectations), but also to managing expectations. Ideas regarding criminal sanctions must be realistic. This study also shows that improvements in the relationship between the police and the public prosecution service are necessary; police officers are in need of more feedback. It might be beneficial for both prosecutors and judges to have an internship periodically in the police organization. This might promote that members of these three professional groups learn from each other and this might contribute to a better understanding of their diverging perspectives.

Discontent about the instrumental and moral significance of criminal sanctions is not limited to police officers. Some prosecutors and judges are also dissatisfied about these issues (albeit for other reasons). In all three groups investigated, this study indicates that there is a clear moral dimension to the way criminal sanctions are being considered. The deterrent effect of punishment is not necessarily seen as instrumental in combating crime, but also fulfills a symbolic function: when behavior is unacceptable, this must be made clear in a highly expressive way. However, if this symbolic function of the criminal justice system would prevail, the result might be that consequences of criminal sanctions will no longer be taken into account. For example, research showing that offenders are significantly less likely to repeat offenses after community service than after prison (Wermink et al., 2010) is relevant. And no matter how great the claim that is placed on the criminal justice system to create moral order and to provide safety, the premise better safe than sorry is at odds with its legitimate operation. Disorder and uncertainty are only increased when the state and the judiciary can no longer be regarded constitutional nor reliable.

Various attempts are being made to involve judges in the context of a criminal case, i.e. by showing consequences for possible victims and neighborhoods. This research showed that some judges themselves like to broaden their perspective pertaining to the file that is submitted to them. It has not been investigated to what extent judgments are influenced by this, yet the question of the right balance between due process and crime control can be raised. Some judges prefer to regard the lawyer as crucial in realizing due process. This underlines the importance of accessible and high-quality legal assistance for suspects.

This research gives reason to think that prosecutors and judges are in need of more professional debate and also of guidelines. Legal equality does not come about automatically. It seems to be of great importance to discuss professional differences of opinion, as many of these have emerged from this study, and to eliminate them where possible. How do police officers, prosecutors and judges deal with various calls for leadership (Vinzant & Crothers, 1996) in moral and social choices? Skills are needed to deal with these choices. Also recognition of the different perspectives on questions that arise in practice is necessary.

How can the police solve quality problems and ensure that their work causes no problems later on during the criminal prosecution? A question that is also raised by this study is how the public prosecution service can better respond to perceived problems with the division of responsibilities: who ultimately coordinates a good and quick settlement of a criminal case? This study also draws attention once again to the need to control lead times at all levels in criminal justice, not so that efficiency goes at the expense of the necessary quality, but in such a way that criminal justice is perceived as socially effective and that there is an acceptable explanation if proceedings take longer than seems necessary.