Criminal Justice Reform in Comparative Perspective - Workshop Report
Forty-five conference delegates from the USA, Europe and, of course, the University of Birmingham, met for a number of panels on key criminal justice reform issues on the 24th and 25th of August 2017.
Chris Slobogin (Vanderbilt University) and Russ Miller (Washington and Lee University) kicked discussions off with major concerns over the constituitionality of some form of government surveillance highlighted. Together with Tom Chothia (Birmingham) providing technical insights the panel concluded concern above all at the potential offered by combined law enforcement and commercial profiling and the law’s inability to keep up. Savy judicial case-by-case decision making is called for.
BLS’s own Adrian Hunt then impressed upon participants how little is actually needed to expose individuals to criminal liability for counter-terrorist offences due to the far-reaching nature of preparatory offences now in place in the UK. Steve Hewitt (History, Birmingham) and a number of US scholars underscored how exceptional this liability is and discussion of the vulnerability of the system ensued. These topics were further elaborated upon by Ernesto Savona (Transcrime) as he presented initial findings from the PROTON project, which, however, highlight how common previous criminal activity is for both terrorist and organised crime perpetrators. Chris Allen (Social Policy, Birmingham) provided the conference with insight into the workings of counter-terrorism policies within the city reporting on the evolution of the controversial PREVENT powers towards safe-guarding measures to prevent travel to Syria.
Professor Rob Cryer (Birmingham Law School) and Mark A. Drumbl (Washington & Lee University) presented more exploratory thoughts on lessons to be learned from international criminal justice with Mark emphasising in particular that there is only so much one can expect from criminal justice altogether; society’s ills require further mechanisms than those. This point resonated strongly in the panel on corruption in which Nikos Passas (Northeastern) and Mike Levi (Cardiff) delivered critical appraisals of anti-corruption practices. BLS’ Carol Jones and Nikos highlighted some examples of good practice and functioning systems with Nikos emphasising the broad, cooperative set-ups required to have any chance of success.
The second workshop day focused in on the detailed procedural stages of criminal justice delivery. Ron Wright (Wake Forest University) provided analysis of US prosecutors “flying bling and flying solo” and thus achieving undesirable social consequences through their work, with the quality of criminal justice achieved often compromised. Thomas Weigend (Cologne, pictured above) discussed the situation and motivations of German prosecutors as almost the polar opposite to this although pressures there can also be seen to ensure the results delivered differ from the ideal many might imagine. BLS’ Hakeem Yusuf presented core aspirations from and the major hurdles faced during his time as a public prosecutor in Nigeria. Bryan McCannon (West Virginia) and the Business School’s Siddhartha Bandyopadhyay then provided an economic perspective on prosecutorial actions analysing the incentive structures driving prosecutors in the US.
Together with Steve Thaman (Saint Louis)’s comparative analysis of penal order proceedings – a paper-based route by which prosecutors (with minimal court input) produce large numbers of convictions in many jurisdictions, this cross-cutting perspective led workshop participants to an in-depth discussion of the broader themes, which had been crystalising throughout; incentive structures and the lack of accountability. Often key points for reform where identified as being a need to change the incentives currently operating on criminal justice professionals (although the issue of resources was recognised as a major constraint). A lack of proper accountability whether due to a lack of legislator understanding or the necessary structure was pinpointed as a major concern.
The final papers of the workshop which saw Beth Colgan (UCLA) focusing on civil forfeiture in the US and Jack Chin (UC Davis) discussing the collateral consequences which come alongside criminal conviction in the US, demonstrated all too clearly that the criminal law is not always the most punitive force in play. Workshop participants were in parts shocked at the extremes to which alternatives to the criminal process are used to further punitive (and indeed other less legitimate) interests. Whilst the examples shown highlighted some extremes within the US system, BLS’s Milena Tripkovic highlighted that the electoral consequences of conviction across Europe can also be used to hamper citizens well beyond a criminal conviction. Together with some of the themes of the previous day, our final discussions recognised that whilst incentive structures and accountability within criminal justice systems might be in severe need of overhaul and reform, the deliberate use of mechanisms outside of these parameters could be all the more dangerous.
By providing an inter-disciplinary, comparative discussion of criminal justice reform, this workshop spoke to many of the key concerns of the IJA, demonstrating also, however, that workings beyond the scope of normal justice mechanisms can disastrously put punitive mechanisms effectively beyond the law.