Criminal Justice: Legitimacy, Accountability and Effectivity Research themes The Criminal Justice programme centres on the concepts of Legitimacy, Accountability and Effectivity. It should be made clear that the legitimacy of criminal law and the implementation of criminal law are never straightforward. In our democratic legal state, where actualisation of values is fundamental and necessary in a concrete societal context, legitimacy in particular has constantly to be maintained. This legitimacy is not only a normative matter, it is unavoidably interwoven with empiric reality, criminal politics and social discourse. Legitimacy, Accountability and Effectivity of criminal law, the operation of criminal law and criminal politics cannot and may not be considered as separate from one another, from the perspective of the democratic legal state. Accountability in the public sector relates to the responsibility of professionals to be able to demonstrate that they carry out their public tasks properly. These issues are particularly relevant to the current debate as a result of declining trust in the police and the legal authorities for example. Citizens are by in large self-aware and critical, authority in these areas is no longer automatic and the discretionary powers of individual legal officials is increasingly under discussion. Also all kinds of new actors public as well as private are entering the arena of safety assurance. The government is adopting a more guiding role, devolving responsibility to other parties and making use of the resources of these other new actors. In terms of effectiveness, the question is actually just how effective is legislation, the maintenance of law, interventions and sanctions? The question of the intended effect is relevant, as is the question of any possible unintended effects and/or side-effects. These effects should be offset against any possible alternatives or against the material and immaterial costs. The Criminal Justice system can only be legitimate and responsible if effectiveness in a broad sense is also included in the equation. The foregoing demonstrates that penal law and criminology are doomed, as it were, or alternatively are privileged - to always observe the current social trends, the perceptions and political criminal debate. In the interests of Legitimacy, Accountability and Effectivity of criminal law, they must not ignore one another s work and results. Developments do not stand still and new questions constantly arise. Globalisation forces criminal law, the implementation of criminal law and criminology to orientate themselves to an international approach to the issues of crime and how this should be dealt with. The developments in the field of forensic science raise the discussion not only of the finding of truth itself, but also how the tracing, prosecution and dispensation of justice are organised. Recent developments in the field of neurobiology and neuro-psychiatry raise new questions for explanatory criminology, for criminal process law and for the principles of our system of material criminal justice. Also the influence of the more adversarially- oriented common law systems on the criminal discourse and on our system of criminal process law advance unrelentingly. It should also be mentioned that the
approach to criminality is no longer the exclusive domain of criminal law, but that instruments from other fields of law are increasingly being applied. The consequences of this is that the traditional borders between legal domains are blurring. These developments are often applied from a perspective of effectivity, but can equally raise questions from the perspective of legitimacy and accountability. To summarise, criminal law science and criminology in combination, need to offer answers that meet the wishes of society now and in the future. At the same time they should also meet well-founded scientific insights and considerations relating to the legal state and legal-systematic considerations. This should include systematically incorporating insights from different disciplines in analytical research questions and aim at generating empirically and normatively founded social and scientific knowledge. Description of the research Criminal Justice is a broad domain. The concept of Criminal Justice alludes to the system of principles, rules, practices and institutions with which the government provides sanctions for socially undesirable behaviour and imposes these sanctions, including relevant legal criteria. The concept understands the conglomerate of legislation, policy, police practice, jurisprudence, etc. as a single system. The research is concentrated on relevant developments and issues that are important in the domain of Criminal Justice in the mid to long term. The key question in the Criminal Justice: Legitimacy, Accountability, and Effectivity programme is: How is it possible to guarantee that legislation, maintaining the law, passing judgment and imposing sanctions are congruent with and match the findings of criminology, penal studies and forensic sciences, the internationalisation of the law, the demands and ideals of the legal state which are under development, the expectations of the citizen and the requirements of effectivity? The research programme has three distinguishing characteristics: 1. The research is by nature dynamic The developments within the domain of Criminal Justice mean that the research issues have to be crystallised in continual cohesion and confrontation with social and scientific developments in the field. Attention in the research is focused on the dynamics of phenomena; not on criminal behaviour as such, but its development; not on legislation, but on how it is affected by societal changes; not cross-sectional, but longitudinal. In short, the research focuses not on how things are at a particular point in time, but on how circumstances change and what causes this. In this respect, particular attention will continue to be paid to discrepancies between perceptions and reality, between the wishes of society, criminological and legally founded responses and solutions, and the discrepancy between science and the political discourse. The research is dynamic not
only in terms of its object, but also its perspective. 2. The research has a dynamic perspective What typifies the research programme is not so much the choice of the developments and issues within the domain of Criminal Justice, but in the approach that is taken. This is determined by the three notions of Legitimacy, Accountability and Effectivity and their mutual coherence. The research does not focus purely on studying the structures, conditions, rules of play and processes within the domain of Criminal Justice, but on the interweaving of the empiric realities with criminal politics, the social discourse and the relation to the principles of the democratic legal state. Bearing in mind the perspective of these three notions and their mutual cohesion, legislation, policy, police practices, jurisprudence, etc., will not be studied and described autonomously, but continually as facets of a conglomerate in which systems, structures and processes cannot be considered separately from their effect, their legitimacy and the way in which elements are embedded and communicated to society. This means, for example, that research on a change in legislation will never be limited to a description of this change and the underlying effect, but that aspects of justification, motivation and effectiveness will be part of the research. However, this also means that for research into the further development of a European legal area, the approach will not be focused purely on its penetration of and integration into the national system, but in particular on issues relating to the legitimacy of the process; this might include such considerations as maintaining or strengthening the legitimacy of the national system and justifying it and communicating this to players and citizens. The dynamics of the research are also apparent from the clear longitudinal component. In terms of legitimacy, for example, the question of how public opinion stands with regard to crime prevention and how susceptible it is to change has to be considered. Which social groups adapt, how do they achieve this, and why? The approach, determined by the perspectives that characterise the research, can only be achieved by a multidisciplinary research group, a group formed by criminal law lawyers in partnerships with lawyers specialising in public administration and civil law, social scientists and practitioners in forensic sciences. This multidisciplinary composition is a distinguishing factor not only of the research group, but also of the research. 3. The type of research is multidisciplinary The principle behind this is that for many social issues in the domain of Criminal Justice, satisfactory answers cannot only be generated purely by studying the legal system and the realisation of this, but that insight is also required into perceptions about the law and into the individual behaviour of the various players within this. Research questions, materials and methods from different scientific disciplines are then also needed in studying these various facets of the law. One might consider here the effect of public perceptions on the way the criminal law organisations function and the basic structures of the criminal law process. Establishing the effectiveness of sanctions, for example, not only necessitates an analysis of the principles and aims of imposing penalties, but also and primarily in relation to this, the (large scale) collation of data and the statistical analysis of the empiric
data. In order to make maximum use of the inherent character of the different underlying scientific disciplines and the relations between them, three levels are therefore distinguished on which the research can focus: 1. the level of systems; 2. the level of processes; 3. the level of conduct. Specifically in their cohesion and interwovenness, the three levels offer excellent points of contact for addressing multidisciplinary issues. For the next few years the choice will be made in favour of Corpus Iuris for the systems level. For the process level, the programme will focus on the domain of maintenance, interventions and sanctions, and for the level of conduct, on perceptions, facts and law. These research domains will determine the direction for the coming years and their effects will be constantly evaluated, adjusted and actualised, in confrontation with the social and scientific field. The programme s researchers will apply the expertise, experience and contacts available within the research group and the faculty. Explanation of the matrix The above individual and distinguishing distinctive approaches result in a Matrix (a matrix) where the various perspectives and the levels are processed. In each cell of the matrix the emphasis is placed on an assigned topic area, an indication is given of suitable questions and subtopics. The matrix is an open array, where both horizontal, vertical and diagonal links can be studied. The theme concerning the measurement of punishment, for example, has starting points on all three levels and on all three perspectives. At the level of corpus Iuris for example the issue of discussion concerning the setting-up of minimum punishments/penalties plays an important role. The establishment of ideas concerning alleged effectiveness also plays a role in this. Moreover the effectiveness can be studied, including possible side effects. Also the motivation with respect to the citizen and effective communication about that can be relevant for legitimacy and effectiveness can be a subject of study. Positioning with regard to previous research carried out by the research group The Criminal Justice: Legitimacy, Accountability, and Effectivity research programme aims to bring together researchers from fields such as criminal law, criminology, the economics of law, the psychology of law and the sociology of law. It is logical that a substantial number of the researchers will be part of the Institute for Criminal Law and Criminology. To date, most of these are affiliated as fellows or PhD fellows of the Security and Law research programme, in dispute mediation and multilevel jurisdiction. The research programme aligns perfectly with a number of themes from these three current research programmes. The perspective of the research does, however, shift. The research programme attempts in line with current knowledge, experience and the department s own publications of recent years to involve criminological, forensic and legal research more directly with one another. It aims in this way to better correlate better with the social context of the phenomenon of crime, as well as with the necessary but unfortunately lacking involvement and cross-fertilisation between empiric and
normative science. Maximum use will be made here of the Leiden criminal law tradition in a legal-theoretical and fundamental-theoretical approach. Owing to the integration with social scientific knowledge, the research offers more than previously the opportunity to include in the studies the relation between the current norms within society and the norms which are expressed in material criminal law. This perspective also offers the opportunity to study the dynamics between criminality and law-making and legislation, involving not only intended but also unintended and possibly adverse affects. In addition, this perspective increasingly provides possibilities for including material criminal law in the research, as well as the inseparable link between material and formal criminal law and the related and often unnoticed - possibilities of criminal politics. The research programme also offers the opportunity with regard to norms of conduct for citizens as well as the maintenance and realisation of such norms to include the position of administrative law and civil law in the study of particular themes. Type of research / methods The type of research is closely related to the character of the fields of science involved: jurisprudence, criminology, penology, the economy of law, the sociology of law and forensic sciences. This means that there will be quantitative and qualitative empirical research, theoretical criminological research, classical normative legal research, fundamental research into the foundations of law and elements of comparative law and transnational research, but the express task is where possible to link these different elements. Reflecting the central question of the research, this means that the research is based on theoretical, empirical and normative questions, and will take shape in the form of: Obtaining, processing and analysing material on the nature, extent, causes and approach to phenomena of criminality in relation to the (intended) regulation of such phenomena, based preferably on longer running empirical research into the dynamics of criminality and the infringement of laws, with a view to tightening and expanding the existing criminological theories; Processing and analysing empirical material for the purpose of developing and crystallising legal answers and solutions for criminal politics, criminal law and criminal justice; Analysing, translating and critically assessing answers and solutions for social problems considered criminal-politically desirable, as well as thinking through, establishing and designing new legal concepts, considered desirable based on research results, for achieving criminal law in our current democratic legal state; Drawing attention to and analysing possible discrepancies between social discourse, the phenomena of criminality as these occur and principles and rules of the legal system, as well as developing and employing the results obtained with a view to formulating legal science research questions; Thinking through, establishing and designing new legal and criminological concepts (considered desirable on the basis of research results) for studying and controlling
criminality and studying, analysing and evaluating the classical principles of our criminal law system in the perspective of the social concept of crime, of internationalisation of crime/criminal law/criminal justice and continuing horizontalisatin of legal relations. Existing criminological theories will be tightened and expanded, based on empirical research into the dynamics of criminality and the infringement of the law. Partnerships The researchers within Criminal Justice maintain extensive contacts with the social field, the diverse players in the field of criminal law and criminal justice and relevant research institutes and centres, and will continue these contacts in the context of the new research programme: other faculties and universities, NSCR, WODC, NFI, NICIS, Verwey Jonker Institute, COT, the Council for the Application of Criminal Law and Youth Protection, the Public Prosecution Service, the Court Judges, the police and diverse directorates of the Ministry of Justice. By means of the orientation towards Criminal Justice, the research programme seeks to connect with research in the surrounding European countries and the United States. The changing perspective of criminal law and the broader perspective of criminology naturally demand co-operation with international researchers. Participating in the scientific debate at home and abroad is therefore necessary. As regards co-operation, besides the existing collaborations, the research group will focus on expanding the already existing contacts of the researchers in Europe and also on making use of the faculty and university partnerships with other European faculties. Co-operation with fellows from Multilevel Jurisdiction research programme is also very probable. The intention is to allow the further elaboration and development of the research programme to coincide in terms of content and process - with the setting up of an English-language Master s in Criminology (intended to start 2011) and in the longer term of an international Master s in Criminal Justice. Publication culture It is the aim of the research group to take part in national and international scientific debate and to focus on publications in prominent scientific journals at home and abroad. The researchers can to a certain extent choose their own forum. A research project may well result in both more legal and more criminology publications. As the research theme changes from a pure Dutch forum, it is evident that publications will be directed at the international fora, particularly where researchers have a message that exceeds the concern of the Dutch language area. Research results will be exposed to discussion with partners in round table meetings, study days and expert meetings. International conferences and symposia will also be used to expose the results to the test of criticism. With an eye to this aspect and further profiling, within the programme, an international conference on the research theme will
be organised at least once every three years. Efforts will be made to make use of partnerships with international universities and researchers and in using international fora to ascertain possibilities for joint publications. Related to the efforts in the field of the English-language Master s in Criminology and in the longer term an international Master s in Criminal Justice, consideration can be given to instituting a transnational journal Criminal Justice possibly starting with an online journal. Please also see the overviews of the participating researchers in this research programme. Social and scientific context of the research programme The field of criminal law and the implementation of criminal law never stand still. Evolving social assumptions and developments of a social, economic and political context often have a direct reflection on the notions of and developments of crime including how this is regulated. Perceptions about crime and how it is handled without a firm basis in empiricism and the foundations of our criminal law system can often take on a life of their own. This state of affairs has an effect on developments in criminality policy, on criminal law and the implementation of the law, as well as on criminology and the science of criminal law. Shifts in the criminal law discourse and the political-criminal debate in the (recent) past give illustrations of how criminal law and criminology are directly influenced by developments in society. After WWII attention was focused on reconstructing the economy, criminal law developments (economically oriented). However, at the same time, as a reaction to the horrors of the war and the detrimental effect it had on law, criminal law and the practice of criminal law took on a humanistic approach. Conversely, the tumultuous social developments of the sixties led to resistance against hierarchy, pillarisation and the established societal norms. Developments in criminal procedural law are strongly oriented towards the democratisation and legalisation of legal relations, with a major focus on checks and balances that were considered inherent to the rule of law. Criminology developed itself more strongly in the direction of empiric research based on more refined research methods. In material criminal law, the questions were oriented more towards the criteria for penalisation, the relation between a magistrate, politics, extra-legal norms of justice and the exclusion of blame. This was followed by a number of years of almost unilateral focus on criminal procedural law and the protection of the accused. With the increasing depersonalisation of society, the lack of social control and social bonds become an important perspective within criminology. The cross-border nature of criminality and organised crime has not escaped the notice of criminological studies and criminal justice resulting in research into such areas as crime syndicates and drugs mafias. Material criminal law contributes to this with an increase in penalisation within the economic field.
At the end of the previous century societies attention turned more towards a broader understanding of security. Social developments in the field of non-security (and the perception of it) led to rapidly successive adaptations in practice and legislation, and also in the philosophical thinking concerning security. In certain areas the constant modifications made for friction between systems and the destruction of traditional criminal regulations, criminal and penitentiary basic principles, values, aims and theories. Also the effectiveness of measures which aim at promoting security are not always obvious. At an exceptionally high rate, programmes are adapted, adjusted and reduced without any attention being paid to the effectiveness determined by the rules. There now becomes a growing need for `evidence-based policies' and a broader support public support for these policies by citizens. In the field of material criminal law the strife towards a risk-free society has an impact on criminal prosecution and the basic principle of human behaviour and individual liability. The legitimacy of these traditional basic principles seem to have partly lost some of the original social basis. The social concept of crime includes now more than ever much more forms of risks and threats. The influence and expectations of the majority of citizens in the last two decades has grown strongly considerably and in connection with this, we now see increasing attention being paid to a player who until then had been neglected in criminology: the victim. The changes in criminal law follow hesitantly. The monopoly position of the government and their stance on the treatment of crime becomes less of a first priority. Next to the vertical public ratio there is more and more place for players from the private sector, civilian involvement next to detection, consensual procedures, conciliation, responsive public prosecution and the victim are all serious parties in the criminal proceedings. This development has not yet crystallised (think of discussions concerning juries and the administration of justice, the role of the victim in the criminal process, citizen s initiatives within neighbourhoods, citizen forums for the measurement of the length of sentence and the role of experts at extracting the truth). What is striking in all of these illustrations is that in debates, the normative, empirical and basic legal theory hold little relation to one another. The criminal policy of the government is connected more closely to public debate and its perceptions concerning crime, but analyses from the area of criminal law science and the constitutional state show that the principles seem to continue to work in one line. The constitutional state and legal-systems, both theoretical and methodological are seen as problematic, conservative and offer few answers to the problems. Criminological evaluations are frequently limited, they are criticised in so far as they are very quick to overlook the cumulative impact and consistency between crime policy and social and political developments. Moreover literature surrounding societal risk goes a step further indicating that crime problems and the treatment thereof can have a reciprocally influence on one another. Criminal policy can solve certain problems, but problems can also be correctly described as a product of (failing) legislation, for each solution new problems can emerge and more often than not, with an adverse desired effect. Furthermore, after examining the side effects on both an empirical and normative level, it can be seen for example, that the effects can endanger fundamental rights and freedom.