Introduction to Legal Studies

LS 101 - Winter 2018 - University of Waterloo

Dr. Carlie L. Leroux-Demir

SJ 1004, MW 4:00-5:20PM

Lecture 1: Jan 3, 2018

Critical Legal Studies lens - pull back assumptions and look at how it modifies/shapes different aspects in our lives. How society/social change impacts the law. Law shapes morality, but society propel laws to change. Mother-child in prisons. The bond. Not all women have maternal instinct, want to mother.

Lecture 2: Jan 8, 2018

Introduction to Legal Studies

Law is pervasive. It permeates all form sof social interaction and represents a complex and expensive system of social control.

Cricical Legal Studies (CLS) is law in action as opposed to law in the books. Law in practice has unforeseen consequences. Law in theory is all good, but in practice... that's another story.

What is the law?

It's ambiguous, contradictory. Hard to define. Interpreted subjectively by different people. Activists, judges, lawyers, and victims Everyone has a different conceptualiztion. No true consensus.

What is Law and Society?

    4 Key assumptions:
  1. Legal system doesn't operate autonomously - it impacts us and we impact it.
  2. Law and legal decisions impacts aspects of society. There is interplay with politics, culture, religion, and economics. Logic and decision making.
  3. Law may be changed by societal change. Society change -> Law change.
  4. Law is reflective of its respective society (Traditional vs. complex)

How do we study law and society?

Legal Realism (Early to mid 1900s) - Up until this point, it was assumed that the law just worked. It was unquestioned. But laws don't always work in practice. They examined decisions of appellant judges and juries to see if it worked. Looked at how the law truly works, not how it ought to work. There are certain rules that people don't take seriously such as Jaywalking and traffic violations.

Critical Legal Studies (1970s) - Look at how law serves certain interests and inequalities.

Problem: taken up by white males. Neglected by race and gender.

Critical Race Theory and Feminist Legal Theory - society is racist and sexist. Look at how law reproduces this and how law can change. Liberal feminists would say we can definitely change. Radical feminists would say that we're in far too deep and can't change anything.

Defining Types of Law

What is Law?

Law is intended to bed our interests and of the state's. This is where legitimacy comes from (government).

Laws are written/codified, public, formal system of social control.

They're symbolic of power because state has means (via coercion) to pass and enforce laws.

Lecture 3: Jan 10, 2018

when a civil suit follows a criminal action. In certain cases, a civil, we can have a criminal action and civil action that follows up. Advantages and disadvantages of doing that. Financial compensation from civil suit. Certain instances where it's better to have a civil case.

Traditional vs. Complex Societies.

Legal systems have evolved and changed because we have evolved and changed. They relied on convention and custom. Early 1100s - King henry - Western - develop a system that's centralized where there's a legal system that codified its laws according to what the state deems legal and illegal. Other forms of social control in traditional societies - family, religion. Lots of emphasis on informal social controls liek family, religion, custom. Organized cream - mafia - traditonalized - own set of rules and customs - above the law in their own sense.

We are more complex. Migratoin patterns, globalizations, not homogenous but heterogenous, way more interactions, we have different values (different groups, customs, culture, religions), beautcratization (formalized systems of governments), we have more people. We need more governance.

Part 3: Functions of the law

1. Maintain social control and social order

Maintain function of law - to r@@egulate@@ behaviour and @@maintain@@ an @@orderly@@ society. A blueprint for action to guide our behaviour. It outlines @@expected behaviour@@ implicitly rooted in power, authority and sanctions. It has to be @@visible and recognizable@@. Visible and recognizable repressive function to aid in social control. Should be able to know what the laws are and have to be clear and transparent so we know what's right and wrong, and have to see examples of punishment. Therefore @@Coercive@@ function that includes a prescription of punishments for violations.

Trying to punish an drepress wrongful acts as suggested by conflict theory. Certain societies rely on repression more than others NA: death penalty. Dictatorships, heavy military presence - use brute force to invoke the law.The law functions to make behaviour @@predictable@@ through defining roles, rights, and responsibilities.. The law has to have an element of predictability - makes it easy for the everyday person to know what' sright and wrong - helps complex societies to keep running and functioning. The legal is not the only institution that's involved in implementing social controls. The legal system is part of a @@spectrum@@.

2. Laws help in dispute resolution.

To extent that there is @@respect for the law@@, the law offers a blueprint for dispute settlement via courts and other conflict resolution systems. Peaceful resolution in place of ware or vengeance. #BlackLivesMatter - argument: certain groups are targeted by the police, racialized.Within marginalized groups, the feeling is that the police is not there to protect them, but to undermine their communities, so there's not much respect for the law. Conflict however can result when members of society @@disagree on fundamental values@@. Trying to move away from vengeance, etc. This is explained by the pluralistic model of social order to explain disputes as result of @@heterogeneity@@.

Currently, we have laws but people still violate them.

3. Law as instrument of social change

Law as @@mechanism to engage social change@@ in complex societies. Evident in legislative initiatives that are justified by out political leaders. Laws have an @@innovative and redistributive function@@ because they can mobilize change in society and redistribute power, privileges and resources. Legalization of gay marriage - values on sexual orientation, what defines a relationship. Moving away from religious tenaments.

4. Laws uphold rights and define duties.

This is via @@coercive power@@ of the state, laws @@define duties@@/obligations to various roles. Laws also @@define rights@@ and previleges, legitimizing a [person's claim to these rights. A parent has rights and responsibilities. Parent is obligated to provide food and shelter to children and right to chose names, schools, relligion, etc.

5. Laws communicated moral standards - the ideological function

Legal moralism. Used to preserve the moral order of society. Laws legitimate certain conduct or condemn other behaviours. Condemns or condones. Represent collective will of the people, therefore represents predominate social and moral values (law has high degree of moral authority). Educational, socialization, legitimationn function to communicate societies' moral values.

The legalization of marijuana as a case in point. Respect for law = condemnation of behaviours that violate the law. Good vs. bad and moral influence. Marijuana is perceived as less harmful, but others say it's a gateway. The respect for law means there's a condemnation of the law. IT is argued that removing the criminal prohibition of marijuana, the government is condoning its usage. Educatoinal component - illegal - don't smoke, it's bad. Is government condoning marijuana use with the legalization of marijuana? It would regulate it, help with high cost of incarceration. Sinking resources in evaluating high-ness. We could be making marijuana cleaner.

Dysfunction of the law

Follows our critical legal studies perspective. The law is utilized to justify and protect the status quo., prevent reforms and social change, and entrench inequities within society. The law is discriminatory and promote injustice and inequality between rich and poor. It's a weapon of oppression against the ppowerless (conflict perspective) to intimidate people into submission. It can be restrictive to people's freedoms and rights which leads to over regulation. If marijuana is overregulated, drug dealers will still sell their stuff - could create the black market again.

Part 4: Administrative Law

Goals: Overview branches of government. Demarcate True crimes vs. Regulatory Offences. Discuss adv/disadv of administrative tribunals.

Branches of government

True crime vs. Regulatory offences

True crimes are inherently wrong and harmful by the majority (murder, rape, drug use) - offense against society. Regulatory offences control activities that are considered lawful such as business or trade. Regulatory bodies set up to prevent certain activities. They control legitimate aspects of society. Not crimes.

Objective of regulatory offences - to protect the public and societal interests from harm resulting from careless or unscrupulous actions taken by businesses and industry. Regulatory states set minimum standards of conduct and care to safeguard public. Ex: dumping stuf finto lake, noise laws, false advertising. Federal, provincial, municipal scope. Essential to the smooth running of a complex.

Perceptions of regulatory offences - perceived as less serious. Easier to process. Don't need intent. Onus is on the accused to prove that they weren't negligent. Criminal offences have greater penalities and stigma. Moral culpability - not immoral, but it is an offence. The burden of proof for the Crown is less demanding, simply establish actus reus. Easier for crown to obtain conviction with regulatory offences.

They fall under administrative law and we have administrative tribunals. The role of administrative tribunals: they're quai-criminal statutes with quasi-judicial powers - you can still be punished. Governments provide authority. Tribunals are expected to have a certain level of expertise in a particular area. Landlord and Tenant Board, HUman Rights Commission, Immigration and Refugee Appeal Board. Disputes arise between citizens and overnment agencies resulting in the development of administrative tribunals. Like court. Rules are more laxed than a criminal/civil proceeding. They act according to rule of law

The rule of law - society must be governened accoridng ot sets of clear legal rules. No one is exempt from the law. Want to ensure fairness, demote self-interest, laws are enforced in an equitable fashion. Want to promote fairness and equality.

CRP: Why is it siginificant to explore the law utilizing a multidisiplinary approach? In the article,, we explore the benefits and drawbacks of civil vs. criminal suits in sexual misconduct/harassment cases. What would you identify as the most compelling argument for the use of civil trials in this case?

Why is it important to use a multidisciplinary approach to study the law? Philosophy, geography, sociology, conflict theorists, Its execution doesn't always work. Understand how the law fails. We have to question the law.

Should there be financial compensation for sexual assault? hardships. What pricetag do you put on victimization? Lengthy - costly. Deterrant or motivating incentive. Quality representation - who can afford the best lawyers? Sexual history - context. Burden of proof is lower in civil case - balance of probabilities - more likely than not that this occurred (vs. beyond reasonable doubt). Privacy Act - info on previous convictions.

Lecture 4: Jan 15, 2018

CRP: Start reading at the Bernardo Case.

Rule of Law

What is the rule of law? Some coountries don't have rule of law. Taliban. Afghanistan doesn't have rule of law. Trying to rewrite. Scope of the law: all individuals and groups come under the rule of law. Character of the law: transparency an dligibility of law to all. Can't be so obscure that I can't follow it. Although law is obscure, messy, muddy. Insitution of the law: rules to ensure fairness. Due process. Independent judiciary (courts), written laws, the right to a fair trial.

Tribunals

Regulatory offences - non-true crimes that are detrimental to society. The goal is to prevent offences that are seen as less than true crime. Governed by tribunals. Set standards and regulations for individuals and corporation to follow. Regulatory bodies have power delegated to them and authority derived from statues. They de-certify, revoke licenses, deport, fine. They're supposed to function as impartial regulatory bodies. Checks and balance, where power is exercised in a fair fashion.

Made of board members of the organization/agency that want to protect certain interests -> conflict of interest. They're going to refer to a particular legislation of a particular area -> must fall within particular jurisdiction. They're going to want to protect their own organization.

Relationships between courts and tribunals: courts have supreme power - they have can overrule. There must be due process and procedural fairness. There's discretionary power in terms of decision-making. Advantage of a tribunal: they can work fast.

Advantages of administrative tribunals: To protect indiivudual rights from the state. It's faster and more efficient, less costly than form court process. There's a different type of expertise - can form well-informed decisions. They uphodl due process - fair, impartial. There's a less formal process. Transparent and open to public scrutiny.

Summary: Administrative law is pervasive and deals with signigcant issues. It's to ensure proper functioning of society. Tribunal decisions are important to orginary citizens. The decisions are impactful to ordrinary people. Some argu that tis is symbolic of how fairly the state treats its citizens in a democratic society.

Part three: Alternative Dispute Resuliotion

Mediation: non-adversarial technique wherin a neutral third party is placed between disputants to assist in amutually agreement. Perceived as non-coercive - you can elect to mediate. Only persuasion can influence the final outcome. Mediator does not impsoe a decision of the parties. Only works if both parties are willing to work out a resonable settlement. The decision may not b binding, so they have to be persuasive. Have to persuade that the settlement is equally beneficial to both parties. It only works if you're willing to do it.

Role of a mediator: mediation is private. They have to be persuasive. They're guides/facilitators - trying to navigate you through it. They typically have specialized knowledge. Where is mediation? Third party consultants - sit with you so you guys can work together - they're going to be specialized in that particular conflict.

Disputes settled in two ways: 1. Interest-based mediation## - mediator persuades you that this is the best in your interest. Best interest of your child. 2. ##Rights-based mediation - outlines existing rules, regulations, laws respective to each party's position - hey, this is the infraction, les be reasonable here. Laying out the law of the land if you pursue this action.

Arbitration - third party who can impose a binding decision. Parties agree before hand to a binding outcome. Mediation - don't have to accept it. Rights-based and adversarial. Although decision is binding, there's not much chance for you to appeal - you just have to accept that it's the decision. It's cost-effective an dreduces court backlog. Similar to civil trials, but held privately. Emphasis on legal rights and duties of parties.

Adjudication - courts intervene , impose a decision, and enforce a decision. Pbulic and formal method of resolving conflict. Best illistrated y the court system. Requirement - disputes be narrowed down to legally relevant facts and issues. Zero sum game with winner and loser.

No longer thinking about custom or convention.

Week 3: Legal Ethics and the Legal Profession

Want to look at the role of the lawyer, how are the regulated and governed. What rules do they have to abide by? Is it cut and dry?

The Oath: upon graduation, you take an oath to uphold moral standards - fulfill responsibilities in a good and virtuous manner. DAting back to Rome's Theodesian Code, Anglo-Saxon England.

'Of Good Character' - refusal for being of 'low character' - they can't really determine to. Aspire to non-low character. Little consensus on what is required to have good character. The assumption is that applicants are suitable. General understood as having traits of honest, integrity, and reliability. But they face ethical dilemmas on a daily basis that are not clear cut.

The Provicial Bar Association - they barely deny applicants. No standardization of application of th eterm. No background checks, it's just an application. Unless clear evidence of contrary, admission granted. You're not going to be disbarred. Maybe something on your record, can't practice in a certain area, or for a certain amount of time.

Public Perception of Lawyers - admired and reviled. Lawyers are honorable - defenders of rights. They're there because they think there's some injustice in the world - but then the reality sets in that the law has technicalities. Always deal with ethical dilemmas. They're trained by their clients, who they defend.

The Legal Monopoly - provincial statutory framework that prohbitis unaithorized person from practicing law. Who can Intended to ensure confidence for clients. The legal world is a monopoly - it determine swho has access to the system, who is denied - marginalized groups, people withmoney and power, gov't, officials, lobbyists. Upside: paralegals may be able to do more in terms of handling a case, but there are gonna be heavier regulations on what they can do.

The Candian Bar Association Cod eof PRofessional Conduct - a body that sets ethical standards that laqyers ought to follow. They are key plaers in the administration of justice. There is a code that establishes specific behaviours and expectations that employs prohibitive language - thou shall not, you are encouraged to. It legitimates what lawyers do. Cannot undermine public trust.

Ruels of the code:

What is the traditional role of lawyers? There's a theoretical model: the lawyer is a higher hand. They're professionally trained to work on your behalf - you hired them. Lawyers should/may identify as neutral - could be prosecuter or defence attorney. Nobody wants to be a defense attorney - have to fight for heinous people. Prosecutor - on behalf of the state.

The Role of Crown Attorney - representative of the government. They ensure due process. They cannot proceed with a criminal charge unless there is a substantial likelihood of conviction. So a lot of cases don't go to trial. Power and discretion to: continue with charges, drop them, trial tactics, stay proceedings, accept plea bargains.

Plea bargaining - securing a plea via guilt - in exchange for lenianct in charge/sentence. Crown might drop certain charges. 95% of criminal charges never go to trial. Risky. Defendants give up the righ tto go to trial. What is the likeliood this jury is going to decide in your favour? The public doesnt like plea bargains because the crown compromises for a lesser sentence just to get them sentenced - there might not be enough evidence. Typically, worked out between crown and defence and judges are remove dfrom the process. They have to come up with something that is mutually satisfying.

Advantages of plea bargaining: Trying to avoid a lengthy, costly trial - trials with uncertain outcomes, avoid revicitimization and trauma. Make it quick. Crown ought to consult with victims and explain need for plea - transparency. Defense ought to explain pros and cons of plea to client without undue influence - can't go back. Must satisfy to judge that accused's consent to plea is voluntary and informed - appeals are permissible but unlikely. If you wanna get someone off the streets - gotta move quickly. Language might be hard to follow.

Crown: Fairness, Impartiality - represent's public's interests: fair and impartial. They should not be there to rack up convictions, but to seek truth and due process - ensure that the accused has a fair trial. If they don't do this, then it brings everything in disrefute. They should only prusue a line of argument that they believe to be true (unlike the defence counsel) - job is to poke holes.

Crown: Disclosure - have to present all credible and relevant evidence to the court so that "justice may be done through a fair trial". Have to punish for all the right reasons. Must have to disclose all relevant evidence as early as possible.

The Adversarial System - the traditional role of lawyer rooted in this system that forms the base of our justice system. Hisorically linked to trials by ordeal and battle with a clear champion - the idea that someone is going to win and someone is going to lose. Complex societies - different resources, groups, power structure between groups. This system does not work for everyone.

Sometimes it works (in cases of true crime), but not always. Movement in going to ADRs. Restorative justtice.

Rationale for adversarial system - supposed to facilitate with the search for the truth. Protect sbasic rights and freedoms from being infringed upon by other groups. Satisfies litigants by giving them their day in court. These points are contested by critics.

Critiques of the adverserial system: the system obscures rather than illuminates the truth. It fosters injustice. It undermines respect for the system and creates cynicism. It's not a justice system, it's a legal system.

Lecture 5: Jan 17, 2018

Ethical Norms when dealing with clients

Obligations to clients: Partisanship, competence, loyalty, candour, pro-action, and confidentiality.

Critigues of the Legal Profession from a Conflict Perspective

Clients are not treated the same (money). Law is a business, clients with money. It represents the interests of rich. Poor under-represented and overwhelmed in the legal system. There's an ambiguity to the legal system that doesn't allow certain people to gain legal help.

Difference between Rich and Poor:

Law as Instrucment for Rich and Poor: Advantaged clients want lawyers to use the system to remedy a discrete conflict. Poor people want change to the system toescape continual round of legal difficulties and bureaucratic hassles. Law is therefore not a neutral exercise - not there to mobilize change, it's to supplant the interest of the elite. Change vs. resistance to change. The rich wanna maintain the status quo, use a lawyer to keep their position in tact. The poor try to change society (social justice) with lawyers. => Law becomes an instrument.

Law as status quo: Lawyers are custodians of the status quo. They renounce through ttheir actions responsibility. They maintain false image as independent and impartial. We know in reality, they're not independent and impartial. That's why we see scandals, corruption. Enforcing/entrenching the status quo. Incarceration of African-Americans + various social groups. Disproprotion application of laws which targets a particular group more than others. Racialized groups are targeted by law enforcement, higher arrest rates. Law masks its true intent. Through judicial interpretation and law enforcement practices that creates this inequality.

Law as ineffective in democractic societ - it prevents meaningful social change that would beenefit the poor. a) It also wastes energy and undermines effciency. Cases take years to process. b) It fails to involve citizens as democractic participants in the process of change. You can't involve people who don't have the resources to be involved.

Role of the lawyer and regulatory bodies in guiding the practice - reg bodies rarely have teeth, not going to prsecute fellow members, mgiht do slap on the rist. Effect of adversarial system on lawyer/client relationship. Outlined the principles of ethical norms between lawyer and client. Different perspectives guide our understanding of legal ethics and the practice of law (ex. Conflict perspective) - trying to see how the legal practice is used by different groups of society.

Exploring Legal Thics: Ken Murray and The Paul Bernardo Case.

The Legal Definition of Obstruction of Justice: Extremely serious offence. Everyone who wilfully attempts...to obstruct, pervert or defeat the courts of justice is guilty of an indictable offence and liable to imprisonment for term not exceeding ten years.

What is permissible - can we take physical possession of item to defend client? Yes. Temporary removal of vidence of a crime for purpose of preventing seizure by police: No. You can obtain evidence, but taking the evidence before police have had a chance to catalog it -> obstruction. Defence attorney are not supposed to impede in an investigation or a trial. Not protected under lawyer-client privilege. Grey area. Professional obligation of a lawyer: obligation to bring evidence forward. Very rare that a regulatory body will discipline in a case where they do hold onto evidence.

When a defense attorney disocvers evidence and is unaware of its contents, they have an obligation to bring the evidence forward. Very rare that defense lawyers are charged with obstruction of justice under the CC For holding onto evidence. Not a convention, nor common reaction.

Murray case - what are the fundamental ethical issues at play here?

You're not there to assist them in the prosecution.

Two fundamental elements of the relationship between criminal defense lawyer and his/her client pertinent to Murray Case:

1) Solicitor-client privilege - not to assist the crown.

2) Duty to confidentiality - limits to confidentiality - not party to an offence (ie obstruction). You cannot become party to offence.

Core questions: 1. Whether privilege extends to physical evidence or whether there is a duty to disclose such evidence. 2. How to achieve a balance between respecting basic rights of he accused in a criminal process while upholding the rights of society (and legitimacy/authority of the legal system?

As a lawyer, am I there to seek the truth? My job is to get the best result for you. You may be guilty, but maybe I can get you a more lenient sentence. No answer.

Debate in Murray Case - most controversial aspect: possession of physical evidence of tapes and the duty of disclosure. They don't have an obligation to assist an investigation against his/her client. A disagreement about lawyer's obligation when possession of inculpatory evidence (evidence showing guilty). On one hand, you have the right to hold evidence for a reasonable period. But there's little guidance by regulatory bodies (LSUC) on set limits - no rules on what a reasonable period is.

Murray's rationale for keeping the tapes: It was legal strategy of Murray's. Argued that there was tactical value of the tapes - it was going to demonstrate Homolka was equally involved in the torture and murder of the three victims. Brought forth after the preliminary to negotiate a plea for Bernardo or used during trial to undermine Homolka and raise doub t as to who murdered two of the victims. They said Homolka had battered wife syndrome, but the tapes revealed that she was an active participant - debate because how can you judge - years of abuse or she was a strange cat.

Murray did not have knowledge of what was on the tapes. Judge said it was damning evidence - no denying guilt.

Is it a valid tactic. Some would say tapes were damning. It was so damning, that it would've been 1st rgree murder easy. Would reasonable doubt. They said that the first degree murder case would be detrimental to the family. How much should you be directed by their own client of their own defence?

Murray's Acquittal - did Murray have the requisite mens rea (intent)? Did he willfully obstruct justice? The crown had to show beyond a doubt that the suppression of the state were intended to obstruct. They could not show beyond reasonable doubt that there was intention. Misconduct charges dropped in 2000.

Communications between Lawyer-Client: Privilegel is issential to the relationshop but not absolute. Lawyers are not disclose any communication as a direct result tof the accused seeking legal advice. There's tapes and there's communication about the tapes. Privilege does not extend to communications that constitute a criminal offence or intent to commit offence. It must be broken when lawyers must defend his/her self against criminal charges. Communication is privileged, but communication about privileged evidence is not. Tapes are constituted as non-cimmunications but physical evidence. But there was a lack of intent there.

Problematic about this case: what if the tapes had surfaced? They would not have had to make a plea bargain wtih Homolka. People pissed off that this woman had engaged in heinous acts and did not received enough punishment. If tapes surfaced, could've prosecuted both of them.

What would you do?

Your client has been charged with murder and advises you that there are tapes. Your client directs you to get those tapes when the time is right. You do not know the exact content of the tapes but know that they could a) help in your defense or b) if never found result in a lesser charge. Should consider that communication between you and your client confidential? YES or NO

Should you allow your client to dictate the terms of finding/disclosing the tapes without knowing the content? Should you, to avoid obstruction charges and breaking the law, simply hand the tapes over?

What was the delay?

CSR 2: Where is the line to be drawn betwen counsel's duty to the administration of justice and his/her duties to client? Explain: it does not follow that because concealment of incriminating physical evidence is forbidden there is always a corresponding positive obligation to disclose. Should Murray have been found guilt of obstruction? Why or why not?

Lecture 6: Jan 22, 2018

Results of CRP: Guilty: 85, Not Guilty: 6. N=91. Reasons for guilty: Professional obligation, time lapse (highest), for purpose of concealment. Not guilty - strategy, tapes fall under communication.

Theories of Social Order

Objective: overview 3 major thoeireis of social order: consensus, pluralistic, conflict model. Understand basic principles and critiques. Illustrate the continuum on which they fall.Explore relationship between social order and shifts in crime control logics. What are the impacts on crime control logics - how we deal with offenders. Guiding question: How do societies maintain social order? By which mechanisms ensure social order? How do theories of social order explain deviance and or criminal offending.

Social order is how society is organized - organized by values, beliefs, norms. IT prescribes what we can and cannot do, what's right/wrong. What are the consequence sif we do violate those norms. Involves various social structures, practices, and institutions to maintain and establish methods ofr relating and behaving. Correctional institutions,church. Practices and discourses.

Human behaviour/society automatically presupposes social order. Looks differently across different nations/countries/cultures/time periods. Social order is problematic - why do groups behave the way they do, motivations, patterns, how do we coexist? Different societies/groups fall into different categories. Major theoretical perspectices to explain relationship between law and society fall along a political continuum. Models explain social order. Not exclusive, can fall into all of them.

Continuum: Value Consensus/Consensus -- interests/pluralistic -- Coercion/Conflict

Conservative -- Liberal -- Radical

The Consensus Model - society is housed together by a system of common values. These values legitimate our government/state. Because there is value consensus, there is consensus on respect for the law and our institutions and their goals in shaping us, increating regulations to guide our behaviour. The law is constituted representing the collective will of people. Assumed that the law represents the will of the people. The application of rules and law enforcement measures go unquestioned (should be, in theory).

5 Basic Principles:

  1. Socia order is based on consensus and people are committed to a unifying set of values. Values internalized through socialization and give rise to social order as people conform to norms, customs, and traditions. Ex: education system. Terrorism is bad - collectively agreed.
  2. People obtain personal satisfaction and status from conforming to society's norms and values. Law-abiding citizen - won't come into conflict with the law and allows you to move forward. Go to work, obtain status/satisfaction. Conform to work ethic - gives us a sense of status.
  3. Law reflects the collective will of the people. Agree upon what consittutes right and wrong collectively. We agree, murder, rape, assault is wrong. The law is just the written statement of this collective agreement. Agree to not steal, trespass, etc. Criminal code is just a reflection of this collective will. Drug act is a reflection of our view on drugs. Given legitimacy to our government to create rules and regulations.
  4. The law serves all people equally. Assumption based on the notion of a collective will, since it's collective. True in theory, but we're political beings - what the law ought to be vs. what it is.
  5. The theory explains disorder in reference to improper socialization. People deviate because they're not properly socialized. Not going to internalize values the same and not going to be committed to them. From this perspective, societies/communities are not going to say they're responsible that Timmy is a criminal, it's on Timmy that he's a criminal. It falls on the individual, not society. Neglect social barriers, opperssion, marginalization, inequality, stigma, unequal access to resources.

The Pluralistic Model - aligned with liberalism. Represents our current society. A variety of different groups, each group has their our own sets of values,norms,beliefs. At times, they come into conflict with one other. As we become more complex, we are going to experience more tension and conflict between groups because of conflicting value systems. We don't necessarily agree upon definitions of right and wrong. Gay marriage. Abortion.Even if they disagree, the one unifying factor: we have some faith and respect for the law and legal system as a mechanism to solve disputes among groups. Groups opposing one another on what's right and wrong. We get along because we have to. Business - need to profit, and be unrestricted by government.We need some peaceful mechanism by which we can resolve disputes - doesn't involve barbaric/cave methods of dispute societies -> legal system. In this society, we have an outlet - if you are not satisfied, there are avenues you can exercise dissent Voting system (unless it's rigged)

    5 Basic principles
  1. Society is composed with diverse groups with relatively different value set. differences in region, economy, gener, age, race, ethnic, politics, etc.
  2. Amongst these diversified groups, there are dif definitions of right and wrong because of conflicting v, goals, interests
  3. Collective agreement on the mechanism of dispute resolution through peaceful means thus in everyone's best interest to conform to norms, values, and laws.
  4. Our legal system can be characterized as value-neutral, impartial in which disputes can be settled fairly and peacefully
  5. The legal system is concerned with the best interests of society. It's demonstrated through peaceful forum. We have a lot of diversity, but the overriding concern is the wellbeing of the entire system - use the legal system.

The Conflict Model - Coercian Thoery - The reason why society functions the way it does, is because of coercion (overt or subtle). It's the exercising of group power by the state. Society is characterized by constant tension, political upheavel, and chaos - dissension, conflict, hostility. For the sake of surviving this type of society, you're compelled to follow the law because there's threat. Dictatorships, North Korea

Disorder results from competition for power and scarce resources. Karl Marx. Those in power impose their will through lawsand law enforcement of those less powerful. Those with power vs. those with less power. May be fewer innumbers, but they have the msot resources. Rise in class conflict, between poor and working class and the rich/elite. Change in society results from successful struggles for power by certain groups whothen impose their will on others.

How do we conceptualize the legal system? From Conflict Perspective - it is not a neutral enterprise, it's coercive, it targets specific groups who are marginalized. The legal system becomes a way for those who have the resources to advance their own interests. Tobacco industry. Large corporations. Law is reflective of neither consensus or rely on a peaceful mechanism - simply representing the interest of the accountable/elite, who have the power to make certain laws.

  1. Society is composed of people with power and those who do not
  2. Different definitions of right and wrong which conflict. Use and bend the law in any which way to make their millions
  3. Conflict between social groups is one of political power (the have and have nots)
  4. Law is designed to promote and entrench interests of powerful. Not value nor is there focus on wellbeing of society
  5. Those in power look to prevent change and maintain status quo.

Why do people commit crime? Deviate? offend? In this view, people are economically oppressed in a capitalist society. Stealing, theft, insider trading, fraud, anything money-related. I'm robbing a bank because I need money. Explains utilitarian crimes. Doesn't explain expressive crimes - murder, rape, assault. A very small elite and very large underclass. Law is passed on the pwoer of the ruling classes, legitimizaing right and itnerests of the elite. The police are a repressive arm of a repressive state.

The cultural link: Thorsten Culture Conflict Theory (1938) - Crime oriiginates because of the expectations that are put on all of us, but which effect those in the underclass more. Societal expectations of wealth and success, but you're at the bottom - limited opportunities to succeed. It's these subcultural groups that have their own sets of values/beliefs and they conflict with the broader legal system. Laws reflect the dominant group, and not the smaller communities -> tension. Tension arises, we get deviance, we have conflict between dominant legal system and small subcultural groups.

They were investigating crime in neighborhoods. Sellin was looking at the impac ton smaller groups amidst modern industrial society. Higher rates of deliquincy in urban areas, clashes between native and immigrant cultures. This conflict arises between crime norms and the norms of that particular group. Crime norms - consensus on what's legal/illegal. It's reflective of the larger society - comes into conflict with smaller groups.

We have conduct norms - those belonging to less powerful groups. These are shaped by the experience sof those particular groups when they come into conflict/contact with the law/legal system. Sellin argues that we're going to see a rise in deviance and criminal activity because we have these intercultural groups trying to navigate/exist within a larger culture, wehre there's incongruency between value sets. What happens: the more powerful groups are going to criminalize behaviours that do not align with the rules/regulations of mainstream society -- othering, otherized.

When does conflict area - Culture Conflict Theory - Splinter groupsAnglican church - whether or not to recognize gay marriage. There are groups that have splintered off from the Anglican church because they don't want to recognize gay marriage. When codes clash. When law of one cultural group is extended to cover territory of an another (First Nations - they wanna create their own justice system). When members of one cultural group migrate to another culture - children of immigrant parents born in the new countru - clashes of generation.

What's problematic of Sellin's Theory? What about agency and free will? You may belong to a subculture, but we all have agency.

He proposes that those in the less powerful group have two options: 1) assimilation - alter their culture, adapt, adopt. 2) risk further cultural clashes and conflict. Perhaps we could have a combination of both.

Critique of the models presented

Takeaway: problem with perspectives is that they're presented as mutually exclusive. We may combine elements of all three. We can show that all three apply in canadian context. Social order depends on mixture of coercion, interests, and value consensus. Culturally-dependent as to how thay are prioritized on a hierarchy or continuum.

Lecture 7: Jan 24, 2018

Social Order and Crime Control

CRP for Monday.

Not crime control vs. due process. A paradigm. Last time: looked at the models. They operate along a contiinuum. They're models - they cahn change, be combined, used to explain different things. Dynamic in fluid.

What is social order? It's what keeps us together - it binds us, a common set of values, belief systems - there is legiticmacy in the legal system/government. Modern society - pluralist model - a variety of groups, needs, interests, norms - bbut the one thing we can agree on is the fact that we adhere to our justice system, we give some power to the state - helps dispute settlement. What happens when therea re social/cultural shifts in values?

Problem with those models: assumes one or the other. But there are shifts. There are two transofrmative processes that have occurred: 1. Social, ecnominic, cultural changes since WW2. 2. Political realignments. A modification of previously social/economic policies. This has changes because of neoliberal freemarket enterprise (deregulation of markets - least amount of inerference from the state) and socialconservativism (wealthier society on the whole) - direct impact on how we think about and conceptualize crime and how we go about managing crime. Economic policies geared toward regualting economic activity. Social policies - marriage rights, employment, welfare, dif areas of social life. We become slightly more conservative - to keep up pthe cost of the system, it takes money, money out of your pocket. Readjustment in thinking. Lower/working class are not as eager to pay taxes to keep the social welfare system going -> Conflict tension arising - welfare ideals (gov't looking after its people) vs. working/middle class interest. Welfare policies are viewed now as a luxury - they're expensive - requires large tax base.

Macrolevel social change - Society is being reorganized because of these shifts/changes. Mentality has changed. The modernization, capitalist production. Technology and comminication markets. Globalization. Manufacturing sectors no longer exist. Tech sector - only a small portion of us are going to have the skills/education to work in that sector. Closes out a lot of different groups. Economic downturn - the masses are reluctant to put any more money in the system to help people who are undeserving. You are in your position because you worked hard - but there are structural barriers that place limitations on opportunities. A change in our family unit - people are getting better educated - you have less children - women entering the work force - ripple effect - women are not home to childbear and socialize children - becomes responsibility of educaiton system. Both working - dual income - want more things, bigger houses. Whole dynamic of society changes. Emerging rights discourse - we have certain rights and privileges - entititlements. The fall of the community/family/church - they upheld social order - if you violated community, there would be shame - but once you have diversity, economic forces, and that changes, you ened other institutions to have social control.

Has an impact on how we treat crime. Positive correlation between rise of late modernity and criminal offending. We have fewer ties to communities/churches/etc that kept us in line. Those were the informal social controls that were so important/fundamental to maintaining social order - but there's a breakdown here. HOw do we ensure social order in changing times? Increase in criminal activity. Reduction in situational controls. Increase in 'at risk' population - individuals that can't take advantage of the social welfare system - marginalized groups - people are less self-reliant - consistent relaxation of informal controls. Rearrangement in social policy, cultural norms.

Major characteristic: decline of the welfare state. Our welfare system becomes a system of learned dependency because of a lack of informal social controls therefore groups relying on state and social services instead of community, family, etc. Before, we might turn to my mother/father/sister/priest/local police officer/neighbours to solve a problem, get help - that connection is no longer as strong as it was before. Compounded by a prominent rights discourse which has increased our expectations - of what the government should be doing for us. Should the goveernment bail you out because you lost your job, if you're unemployed, if you're homeless, if you hav edrug addiction, you have two children - whose responsiibility is that? Previously, there was responsibility on the state to provide a safety net - but it's not there anymore. The compounding of consumer expectations - what we're entitled to. If you had a job, you should be able ot buy this, have access to this and that. It costs money to keep systems going - it becomes unaffordable.

Because we can't afford it anymore? State will turn to you and increase your taxes - but we don't wanna be taxed - we have high expectations - fancy schmancy. Many of us has been socialized to this affluency - we deserve welath and status. Late modernity had clear impacts on how we conceptualize and organize our justice system. This is a historical production. We see a distnacing of the state/retraction of the state. They're giving power to other agencies - outsourcing to other agencies/local/community - to do crime control. State: it's a shared effort. It's a lot cheaper to outsource community justice to local groups. Charitable organizations - Salvation army - philanthropic groups - provide all kinds of services that fall under the criminal justice system. They're gonna supply you with clothes, give you employer interviews. The third tier. the privitization of services - things like food - have that services brought into jails - not cook in jail. Nexus, grassroots agencies. Commercialized Justice. Commercialized feminism - it's nice to hear, it's a wonderful thought, but you ask someone who's poor, are they empowered? Empowerment as a commodity. Justice - focusing now on efficiency, measuring outcomes - how fast can you turn that offender around + rehabilitation, waht's the best success rate for that indiividual - looking at outcomes. Not looking at root causes of crime, just putting people through the system as efficiently as possible and measuring what programs are most successful with their outputs.

Re-definition of Deviance - now preoccupied with consequence ss of crime, not root causes. We create policies that are reactive. we've reduced state responsiibility for tackling the bigger problems - structural inequalities - that lead people into conflict/crime in the first place. It's not cheap to solve the root of crime. It's a lot cheaper to focus on outcomes. Enlisted communities as strategy that combines community criminal jusitce partnership. Discourse - language and practices - how we tlak about something. Not the state, but the community to help you out. We're emmploying responsibilizatio strategies - you committed a crime, you should take responsibility, shifts entire blame onto an individual, overlooking the fact that they may be impoverished, marginalized, etc. Promoting this indiividualistic style of governance of the criminal subject. Offenders are clients now. Like students are clients and educators are providing a service. Assumes you have certain rights and deserve certain services. Proliferation of Victim centered policies - "safe streets act" - it's great, but we have to realize ethat there are certian segments of the population that deserve a look at why they're committing crimes.

This is a reactionary style system - REactionary politics - create laws/regulations/pooliicies that are in response to criminal offending. We sense a risk that is approaching upon us by criminal groups - there's also complimentary to that, emergence of protectionism through promotion of terrorism legislation. Perceived hieghtened fear aorund national security. A changing attitudes toward helping others - giving people a leg up - welfare/welfare state.

Scholars argue that we're in a perplexing time. There are inherent contradictions at play here. Understanding of the need and desire to reimpose social order by the masses - we have to impose some sort of social order for us to survive, to reduce conflict. But how we get there becomes the question. We feel a sense of rights entitlement and not willign to give up our rights and freedoms. We want to enhance our personal security amidst risky groups, but unwilling to pay more taxes. We don't want to be taxed more because we have less disposible income. Affluent middle class group doesn't want to giv eup their luxuries. We're unhappy with egoism and antisocial attitudes - we're stressing individualism, self-interest - that has resulted from a bunch of factors - moved away from traditional forms of communication, but we're not willing to make adjustments in our needs and interests to move away from out culture because we like it. We're not creating efforts on how to console this contradictoryness. So by us not tacklign the ambiguousness/problems we're dealing with, we're putting focus onto poor groups. I can't manage my own, going to mange those beneath me. Keep people contained and in control. Culture of displacing blame - take blame away from us.

How does scholarship look differently now with these new set of conditions? Traditional criminology was interested in the rel between offender and the state. Now we're more interested in understanding other social structures in crimes. We can extend analysis of other socialculturaleconomicpolitical forces. Focus on the workings of the state - how the state creates strategies to extend control over diff groups. Gave birth to a new way of thinking - critiquing liberal pluralism. what's wrong with liberal pluralism? Its assumptions.

Critique of Liberal Pluraslism: the assumption that the law i there to punsih criminals, bu tthat there's also safeguards in place to protect the accuessed - due process. Looking at the direct relaitonship of liberal pluralism on legal system. We are now starting to think about not assuming/taking for granted that the law is what the law is, that paper translates to action, that there are hidden agendsas, different historical conditions. thinking about how the state creates Apparatuses to secure compliance and social order. Is the government doing things in our best interest - trying to figure this out, or is there a false equality trap there that's making us think we're all equal in the criminal justice system.

Question: conduct interviews with defendants. Trying to determine the authenticity of social consensus about law - that it treats everyone equally. Questining the aplicability of formal safeguards within the legal structure to protect the rights of the accused - whether procedures protect or violate the rights of the accused. Concerned with how the defendent/offender is socially transformed and becomes a powerless subject within this system that is supposed to uphold everyone's rights.

4 key observations

Legal Ideology vs. Practice/Reality - power of legal ideology works to reinforc eimage of a political system that safeguards the balance between state power and inidivdual - that you are balancing the rights of the indivudal against the state. ((The charter of righs and freedoms - you think that it may be a technique to protect yourself, but it's been imposed/dictated on us - there was no vote on it.)) Under liberal democracy, it's assumed we have power and rights and can alter legal arrangements - that we have autonomy in the system - but it's eclipsed by the diffusion of state power to deflect or co-opt grassroots initiatives. Outsource to community groups, think it's helpful, but they use those agencies to pursue their own interests. State power is mediated through community groups and community groups are mediated by state power.

Civilian review boards of police departments - Toronto Police. 1979 - shooting of Albert Johnson who emigrate dfrom Jamaica. 1981 - raids of gay bathhouses. Look at the way state agents intervene in various ways to convert the interests/agendas of grassroots orgs into instrumental vlaue for the state. The police are being criticized of using excessive force - imposing themselves in private lives of individuals. Through the use of police commissions - on the surface seeming cooperative - this actually creates the power o fthe state/discourse. It's not doing exactly what it should be doing. Despite a large group of organizations lobbying against police use of deadly force and interference in the lives of gay citizens the protests against police powers were transforme dby aauth in the police commission into coop arragenment betwen state and citizens.

People in positions of power are appointed as heads of commissions. The playing field is uneven. What seemed like an opportunity for community to come together with law enforcement, closed door meetings, appointment of officials to the police commisssion. police bodies reaffirm their power by gatekeeping.Marginalizes adbocacy and soical justice groups. Law enforcement has a better idea of what you're thinking without dislcosing their own. WE have citizens who are stilll left acocuntable to the state, but there's less and les saccountaiblity of the state tot he individual. Reform of state practicesa ctually solidifies tate control. Gatekeeping - preventing outsiders getting inside institution - reduces transparency/

Alternate solutions to crime: rethinking social order. Conservative ideoology upholds that crime is the result of a lack of discipline requiring law and order powers to increase to instill social discipline (social order). The establishment of sociallly antagonistic policies. Antiterrorism - socially antagonistic, mandatory minimums, safestreetsact. Socially antagoinistic to certain groups, provides greater discretionary power to law enforcement, harsher punishement, severer sentences, has reshaped the objective of our criminal justice instititions by utilizing community to legitimate its power. Just trying to find ways to legitimate power to rationalize certain courses of action - reactionary politics.

Response: this particlualr paradigm - does it resonate with you with your experiences? Do you think it's right, wrong, Do tou think it has merit? Is it a proper representation of society? DAvid Garland. This is what they are arguing. Does it hold true?

Lecture 8: Jan 29, 2018

Two Models of the Criminal Process - The Crime Control Model and Due Process

Two different value orientations. Objectives: compare and contrast these two models. what justice is and what it should be.

Crime Control Model

Basic premise: A traditional outlook on royal criminal system that dates back to confederation time. Back tot he BNA act of 1867. CCM. Call it traditional - outdated at this point. Under this model, it's believed that crime and social disorder constrains our liberty, freedom of mobility. We can only be free and exercise our rights and freedoms if there is a balance between social order. Crime control places greater weight on maintaining social order at the cost of our rights and libterties. Basic trust in the ystem and the values of CCM are respectful of authority.

On continuum: very clear it's Conservative model and value consensus. Could call this value consensus, but can also see it as a coercive model as well.

Liberty vs. protection: how much liberty/rights are we willling to give up in order to be protected by law enforcement.course/legal system. Under this model: quite a bit. Or at least the state wants us to giv eup quite a bit to guarantee protection. The masses aren't took concerned about their own personal liberties because most of us are law-abiding citizens, so the concern of giving up our rights is not that big of a concern - depends of wehre you are in the social structure. Too many rights are given to the criminal offender. Going bakc to Wednesday's framework: we see the criminal offender as problematic/dangerous/deviant group that we want to put out of sigh - not interested in cause of behaviour. Just want justice solved for victims.

Libery in Democratic society - this model is construed as anti-democratic. Not interested indidivudal rights, but the whole of society, what's the best for society. Even if it means the system is given discretion to do their jobs. CCM moves away from liberal democratic stance. This holds Your freedom to throw a punch ends where my chin begins - your personal rights shouldn't infringe upon others.

Law enforcement are the good guys. Moving away from a rights-based discourse. It's not what society can do it, it's what you can do for society - upholds the legitimacy of authority. Faith in police force. (Due process underpins the legal protection - there to protect people's rights against the powers of the state) Difference in value orientation. CCM represents values of police, whereas due process represents the value system that the law profession stands for. Differences in value orientation helps to explain the underlying tensions and conflict between the two professions.

Within a CCM, th erole of the police is improtant and beneficial - then we need to provide them with the resources - whatever it is they need to do their jobs. We have to enable them - that's how we solve crime and have social order. Court orderPolice operation upon a presumption of guilty, generally, as opposed to innocence. Police power comes from the law. Laws must give the police the powers neccessary to do the job.

Means vs. the ends. How do people go about satisfying their objectives? it's not how we got the conviction, not how we obtained evidence. It's that we secure a conviction, arrest, detain, try the defendants. Officers are given quotas - obtain a certain amount of violations. Rights of the public outweight the rights of the individual citizen. Key problem: overzealousness. Not looking to limit power of court, looking to expand it.

Our system is very expensive. Some court cases take years at a high cost to the taxpayer. Long, drawn out process. Not an efficient system. With CCM - they look to efficiency as a key operational sybmol. Who cares about the means to the end, just want the end. Assembly line justice. Goal: get these people contained.

In sum, CCM is very conservative. It's harsh, punitive. Law and order, tough on crime. Victim-centered policies. Safe streets act. Bill-C36. Sex workers. Tough on crime law and order. "Throw the book at them" -

Case Example: A man stopped on 401 going WEst in a rented SUB by a police officer with 35kg of cocaine. Court of appeal held the evidence. Was admissible because the officer pulled them over without reasonable grounds. ARgument: having this person arrested with this much cocaine can be justified even though the police officer engaged in misconduct. On one hand, the weakening of one' scharter of rights and freedoms. Also seeing courts understanding that there is a greater cause. There is a massice political agenda: war on drugs. Legal scholars can argue that if we start excluding evidence on the basis that it's admissible because there was a systemic problem in misconudct, then we leave open a pandora's box. Ruled by judges that this misconduct was not connected to systemic misconduct in the police force - a one off. For the itnerest society, going to deprioritize the right sof this individual in hopes of supporting a greater good -> Example of Crime Control.

The Due Process Model

Divergent model that operates in contrast to crime control. Emerged in Canada, taking center stage. In some ways, it's overshadowing CC. Born from the US declaration of independence. PRemised upon the assumption that the greatest threats to our freedom and rights are born from the state, law enforcement. Anti-egalitarian. "Life, liberty, freedom." Lawyers subscribe to this - not what's just or fair, it's what's just or fair for the client and whether the rules are followed. Threat: misuse of power and authoriity.

Police have to have their powers limited/restricted. Too much power is not good. It leads to abuse, exploitation, misconduct. We have to make sure police officers, court are doing their jobs according to the book. POlice are viewed as a necessary evil. Our rights are paramount. We have to do whatever it takes to uphold people's rights. Sometimes comes at a cost - indiivduals may go free if they're guilty, but it's necessary in order to keep social order. The rights acts have to counterbalance the awesome powers of the state. Protect from actions by authority. REstratining police power.

Police have to follow under the strict rule of law. No one is above the law. Impedes police's process. If police give syou evidence obtained illegally, then this doesn't allow it to be brought forward. To police, impedes their job. To defendant, their right. Presumption of innocence. A possible problem: we will have people released on a technicality. It is better that 100 guilty persons go free than to have one innocent person convicted.

Demanding we have a system in place headed by an impartial tribunal, judge, and or jury. Quality Control. We know there are inherent systematic nequalities within our legal system that disporopritionately target minority groups. This model recognizes it. CCM is not apt to do the same. Expensiv,e time consuming model. Not focused on efficiency. There's a lot of red tape, bereaucracy involved to cross to get trials. That's why there's a backlog of cases. Less efficiency to prevent mistakes.

Preoccupied between legal guilty and factual guilt. Lawyers shouldn't be concerned with the client's guilt. It's whether the rules were followed in their arrest/sentencing. LAw becomes a game, a strategy. Can the crown prove the case, and are they respecting my client's rights. The law will allow a guilty person to goree if the police/courts have not acted in a strictly legal fashion. Legal formalism - courtroom procedures. May completely piss off the public.

Means vs. Ends. DP is concerned with the means. How did we get to where we are? Unfortunately, an increase in appeal cases - both British/Australia/Canadian - overun with appeal cases. People appeal cases based on the fact that their rights were violated, rules were not followed. Expensive. More laws are struck down by the Supreme Court which we may or may not agree with.

Summary: Liberal model. "Doing it by the book."

Critique of Both Models

Must strike a balance between the two models. Refer to example. While not obtained on reasonable grounds, it's on the best interest on society due to the large sum of cocaine - which anyone would deduce was used for trafficking. We have to balance best interest of society and the rights of individuals. We cna't consider models as mutually exclusive. Both have arguments in support. There are advantages/disadvantages. CCM has a stigma attached to it, but it's not all bad.

Vlaue preferences. We, as a society, have clear preferences on how we like to see the law administered. There has to be a balancing act between allowing the officers to do their jobs and at the same time protecting our rights and freedoms. Noth models view the law as having different purposes. How does this become problematic in complex societies - people want different outcomes, values on diff things.

Obvious benefit sof Due process: many changes to different acts: Mental Health Act. Reduce discrimination, protec them on both sides. People in positions of authority - there is some level of accountability - tribunals, diff adminsitrative bodies. Trying to protect those who have less power in those institutions.

Problem of Due Process: perceived from non-legal actors. Obstructionist and expensive model. Right sof idinidivduals piority over rights of society. Allows offenders to get off on technicalities. Allows for rights to be extended to non-citizens (R vs. Ng - sexual predator, killed 5-7, not sent back to US for death penalty). Extradition todeath penality countries unpermitted in this case. Rights of victims ignored. There is an extension of judiciary powers - there's discretion, means more power. The courts have more power to make very important decisions about the courses of our lives. Courts do not have a real pulse on what it is that canadians value. By not extraditing Ng, a sadistic serial killer, base don the fact that he might face death, then it's not upholding the values of society, or is it - whether or not we believe in the death penality. People are lead off on tchnicalities/evade death penality.

We have also seen a rise in vigilantism. Mexico - because of violence perpetrated by drug cartels - they monopolize most of the country down to the local businessman on the corner, utilize children as falcons - watch out for police, permeate every aspect of life in Mexico. Within pedophelia. Raises issues of civil liberties, accusing people without having sufficient evidence - a mock trial. A bounceback into a feeling by the public that the court systems are not doing what they're supposed to do. Groups taking justice into their owns. How to curb? Put money back into the system so they can be more througough, culturally competent, that they're better at what they do, so we cna avoid ad hoc justice.

[Are 'Paedophile Hunters' Getting in the Way of the Law? | Good Morning Britain] - How is this an example of CCM and DPM? Argument: Vigilante are interfering with due process. CC: vigilante groups are prioritize the best interest of society. Not enough resources/money going to police - no special forces. "Hands are tied" - due process is longer. This is much more efficient. DP: It could be used if it was obtaine din a lawful fashion. How could vigilantes help the police? Disemmination issue: how are you disemenating the issue? If you give to courts, they can do their job -> du eprocess. If internet, not the best, internet/privacy laws.

Lecture 9: Jan 31, 2018

Midterm: cover everything up today. 30 t/f questions - 30%. Lecture-based. Core concepts, ideas.

We've seen a shift in values in respect to the two models. A US style. Americanization of the legal system. Past: while certain procedures were overlooked by the police, now there's a focus on minimizing the bending of rules. Shifted in cultural values to a rights discourse. How we protect our individual rights - less of a collective focus than the past. We have a greater acceptence of due process.

Is it possible to bring together due process and crime control? Research out there that they're not as different as we think, they can complement one another. Question: whether we can safely reduce wrongful convictions that are a result of overzealousness without risking too many wrongful acquittals. They're models - they change in application. They're ideal types. How they're applied may look very different. Each has a unique value orientation, but they can be combined and complimented. CCM: presumption of guilt. DP: quality over efficiency.

We work on creating a system of reform to ensure that one level there is some level of efficiency, but also ensuring quality at the same time. Create a set of best practices - what works vs. what doesn't work - make changes on the system. Balancing rights with public safety through the restrategizing of procedural safeguards --> The Reliability Model

Under the reliabilit ymodel, the idea is that due process and CC are two sides of the same coin. Look at the innocence movement - 1920s at B law school by 2 legal students - advocating for the pursuit of exonerations of people who were wrongfully convicted. Growing evidence that fairer proceedings are not incompatible with CC. Outcomes on cases - rise of DP has not necessarily translated into the accused actually exercising their own rights. Even though we're in a rights discource, it doesn't mean we can actually exercise those rights. Soemthing about the legal process that impedes for us to do so: the use of plea bargains and no contest. 95% of cases don't go to court. Much is done behind closed doors - plea bargains - cheap way out. Also seeing an increase in administrative quality of criminal justice systems -> improve efficiency.

Conclusioin: we have the reliability model where CCM and DPM are viewed as compatible. Due process for the innocent and the guilty because they help establish culpability levels. By improving investigative procedures, this new udnerstanding of due process protect defendants rrights. Improving reliability and efficiency of the adminsitrative systems, The Relatibility Model satisfies most fundamental demands of the CCM.

CRP #4 - ways CCM and DP is done here. How could reliability model improve here? Based on lecture notees, what techniques of obtaining evidence could be reformed? WAs the defence counsel correct that this was an oppressive tactic to garner evidence from the accsed?

Lecture 10: Jan X, 2018

Lecture X: Jan X, 2018

Lecture X: Jan X, 2018

Lecture X: Jan X, 2018

Lecture X: Jan X, 2018

www.000webhost.com